FEDERAL COURT OF AUSTRALIA

Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 5) (McArthur River Project Compensation Claim) [2026] FCA 153

ORDERS

THE COURT NOTES THAT:

A.    The references in these orders to MLNs 1121-1126, the pre-1996 non-pastoral use permits, the post-1996 non-pastoral use permits, the road and the pipeline licence have the meaning given in the Reasons for judgment.

B.    McArthur River Mining Pty Ltd wishes to be heard as to whether any parts of the Reasons that relate to the terms of the Indigenous Land Use Agreement made 14 December 2025 (ILUA) should be redacted before the Reasons are otherwise available publicly.

C.    The Court intends to provide the parties, McArthur River Mining Pty Ltd and Gudanji Yanyuwa Garrwa Marra Aboriginal Corporation (GYGM) with the opportunity to be heard on this question of redaction, and may consider publishing a redacted form of its Reasons. However, it is the Court's intention that the Reasons will be made available publicly as soon as possible.

THE COURT ORDERS THAT:

1.    The Claim Group is entitled to compensation under s 4B of the McArthur River Project Agreement Ratification Act 1992 (NT) (Project Act) in relation to the grant, validation and regrant of MLNs 1121-1126, the grant of the pre-1996 non-pastoral use permits, the construction of the road (as to 244 ha) and the grant of the pipeline licence (as to 110 ha) (compensable acts).

2.    The compensation application is dismissed in relation to the enactment of s 4AB of the Project Act, the grant of MLN 582 and the post-1996 non-pastoral use permits.

3.    The Claim Group is entitled to compensation for economic loss for the compensable acts in the total sum of $743,408.

4.    Pre-judgment interest accrues on compensation for economic loss from the date of the compensable acts, in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth) and at the rates referred to in the Interest on Judgments Practice Note (GPN-INT) until the date of judgment.

5.    The parties are to confer and provide a joint minute that provides the interest calculation on economic loss calculated to the date of these orders, and a further order providing for the quantum of interest will be made.

6.    The allocation of $743,408 that is attributable to each of the compensable acts and the dates of the compensable acts for the purpose of the interest calculation are to accord with the Reasons at [1578].

7.    The Claim Group is entitled to compensation for cultural loss for the compensable acts in the sum of $54 million assessed at the date of this order.

8.    Subject to order 9, McArthur River Mining Pty Ltd and GYGM may intervene for the sole purpose of making submissions in relation to whether it is in the interests of the administration of justice that any part of [1512]-[1561] and [1563] of Part M of the Reasons (which relate to the ILUA) be redacted.

9.    The parties, McArthur River Mining Pty Ltd and GYGM are to file any submissions addressing any redactions that they contend should be made to the part of the Reasons identified in order 8 and why, and stating whether they seek an oral hearing on the issue, on or before 2.30 pm ACST on 6 March 2026.

10.    Subject to further order, disclosure of the Reasons other than to the parties, McArthur River Mining Pty Ltd and GYGM, their legal representatives and members and staff of the Court is suppressed on an interim basis pursuant to s 37AI of the Federal Court of Australia Act.

11.    Disclosure of these Reasons to the parties, McArthur River Mining Pty Ltd, GYGM, their legal representatives and members and staff of the Court under order 10 is permitted despite the terms of the suppression order made 16 January 2026 relating to the ILUA, which has effect subject to these orders.

12.    The Northern Territory's application filed 3 February 2026 to re-open its case to tender the ILUA is granted.

13.    The parties will be heard in relation to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Subject to further order, the reasons in Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia (No 5) (McArthur River Project Compensation Claim) [2026] FCA 153 published to the parties on 27 February 2026 be published generally by the Court with redactions made in accordance with the reasons of the Court dated 9 March 2026 (Redacted Judgment).

2.    Disclosure of the words the subject of redaction in the Redacted Judgment be suppressed pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) on the ground that suppression is necessary to prevent prejudice to the proper administration of justice.

3.    To give effect to order 2, order 10 of the orders made 27 February 2026 in relation to suppression of the unredacted reasons for judgment remain in place until further order.

4.    Order 1 be stayed until 2.30 pm ACST on 12 March 2026.

5.    Disclosure of these reasons and orders other than to the parties, McArthur River Mining Pty Ltd (MRM), Gudanji Yanyuwa Garrwa Marra Aboriginal Corporation (GYGM), their legal representatives and members and staff of the Court be suppressed until 2.30 pm ACST on 12 March 2026.

6.    Subject to and until further order, pursuant to s 37AF(1) of the Federal Court of Australia Act and because the order is necessary to prevent prejudice to the proper administration of justice:

(a)    no third party be entitled to access any copy of the ILUA on the Court file other than in the redacted form prepared by the Claim Group and provided to Chambers on 24 February 2026 and as additionally redacted by the parties to reflect these reasons;

(b)    no third party be entitled to access any affidavit that refers to those parts of the ILUA the subject of such redactions, unless such affidavit is similarly redacted by the parties; and

(c)    the submissions filed by MRM dated 6 March 2026 be suppressed and are not to be made available other than to the parties, GYGM, their legal representatives and members and staff of the Court.

7.    Subject to further order, the suppression order relating to the ILUA made 16 January 2026 be revoked with effect from 2.30 pm ACST on 12 March 2026.

8.    Subject to order 9, the parties and MRM bear their own costs of and connected with MRM's intervention and the making of submissions relating to suppression of the Indigenous Land Use Agreement dated 14 December 2025.

9.    If any party or MRM wishes to vary the costs order in order 8, they are to inform Chambers and file a minute of the orders they seek within 28 days, and the question of costs will be programmed for determination as appropriate.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents

REASONS FOR JUDGMENT

BANKS-SMITH J:

PART A – INTRODUCTION

Summary of outcome

1    The McArthur River perpetual pastoral lease known as PPL 1051 covers an area of some 7225 square kilometres in the northeast of the Northern Territory of Australia. The McArthur River and its tributaries flow through the area, meeting the coast in the Gulf of Carpentaria. The McArthur River Project mine site and port operations are also located within the area.

2    This proceeding concerns an application by the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples (Claim Group) for compensation from the Northern Territory for the extinguishment or diminution of their native title rights and interests as a result of a number of acts that facilitated the development of the mine and port.

3    Those acts include the grant of mineral leases to the mine owner, legislation validating the conversion from underground mining to open-cut mining, the grant of permits for dredge spoil storage at the port, construction of a connecting road and the grant of a pipeline licence.

4    The compensation claim is made under a particular statute, being the McArthur River Project Agreement Ratification Act 1992 (NT) (Project Act). The construction of provisions of the Project Act is central to addressing aspects of this claim. Save for one discrete claim pleaded in the alternative, the compensation claim is not made under the Native Title Act 1993 (Cth). However, in resolving this claim I have been guided by and applied the principles established by the High Court in the Timber Creek claim: Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1 (Griffiths HC).

5    This proceeding raised many issues, both as to liability and the manner of assessment of compensation, some of which are novel.

6    I have determined that the Claim Group are entitled to compensation from the Northern Territory for economic loss and cultural loss caused by certain compensable acts. There was no dispute that these were appropriate components of the loss claimed, although the manner of assessment of compensation was very much in issue.

7    As to economic loss, I have applied the unencumbered freehold value comparator approach endorsed in Griffiths HC. In doing so, I have not assumed that it is the only method by which economic loss might be assessed in relation to acts that extinguish or diminish native title rights and interests. However, it is the appropriate method in this case. I have declined to adopt a model based on a 'hypothetical comparable bargain' that might have been entered into and that might have had regard to royalties and other commercial rights.

8    I have assessed economic loss (generally as at 30 June 1993) at $743,408, with an entitlement to statutory interest.

9    I have used the term 'cultural loss' in these reasons in accordance with the convention of the parties and as that term is explained in Griffiths HC at [154].

10    There is no doubt that the impact of the mine and port on the rights and interests of the Claim Group is felt beyond those particular sites, is intergenerational and is enduring. As the aphorism goes, sometimes the site of the pain is not the site of the injury. Cultural loss has regard to this impact: the irreversible disturbance of Dreaming sites and routes; the inability of the Claim Group to stop that disturbance or to continue to protect the Dreamings; the inability to access areas in a manner that permits the continuation of knowledge and customs between generations; the attenuation of such knowledge and customs over time; the inability to access sacred sites; the limitation on caring for country; and the cultural sensitivities that flow from what is regarded by some as a failure to care for country. This diminution of traditional connection to country – to receive from country and to take care of country – is compensable loss.

11    Subject to one qualification, I have found that the Northern Territory would be liable for compensation for cultural loss in the sum of $60 million, assessed at the date of judgment.

12    The qualification is this. In December 2025 the Claim Group and the mine owner entered into an Indigenous Land Use Agreement (ILUA) that provided for certain benefits to be paid to the Claim Group. I have determined that the ILUA is relevant and that some of the benefits affect the assessment of cultural loss for which the Northern Territory is liable, such that there should be a 10% reduction applied to the sum of $60 million. It follows that I have determined cultural loss at $54 million, assessed at the date of judgment.

Structure of these reasons

13    These reasons are dealt with in fourteen parts. Part A provides a general introduction. Part B provides a summary of the six acts on the part of the Northern Territory that the Claim Group contend entitles them to compensation. Part C sets out the trial process. Parts D and E provide the detail of how the McArthur River Project came to be approved and developed, and the statutory proclamations that facilitated it.

14    Part F introduces the relevant statutory provisions and identifies the three liability issues that were central to the determination of this proceeding. Those issues are (first) whether notice of a claim for compensation was duly given by the Claim Group, including the question of whether an estoppel otherwise arises; (second) whether the grant of non-pastoral use permits by the Pastoral Land Board constituted a relevant 'legislative or administrative act' so as to enliven the compensation provision of the Project Act; and (third) whether the compensable acts were 'acquisitions of property' within the meaning of the compensation provision. Those matters are dealt with in Parts G, H and I respectively.

15    Part J collects the principles in relation to compensation for extinguishment or diminution of native title rights and interests.

16    Part K addresses the first of the two heads of claimed loss – economic loss. This Part considers and determines economic loss having regard to the freehold proxy valuation method endorsed in Griffiths HC. It includes an assessment of the expert valuation evidence. It also includes the reasons for rejecting the Claim Group's 'hypothetical comparable bargain' model for assessing economic loss.

17    Part L deals with the second head of claimed loss – cultural loss. This Part documents the lay, expert anthropological and expert environmental evidence relating to cultural loss, and includes the assessment of cultural loss.

18    Part M is related to Part L. It addresses collateral benefits, such as payments to the Claim Group by third parties, and how they might impact the assessment of cultural loss.

19    The final part, Part N, deals with pre-judgment interest and miscellaneous matters.

Native title rights over area determined

20    In 2015 this Court recognised under s 87 of the Native Title Act that non-exclusive native title rights exist with respect to the land and waters the subject of pastoral lease PPL 1051: Ngajapa v Northern Territory of Australia [2015] FCA 1249 (Mansfield J) (Determination). Those rights are held respectively by the members of some eleven estate groups identified in the Determination.

21    The nature of the native title rights recognised in the Determination was varied by Jagot J in Top End Aboriginal Corporation RNTBC v Northern Territory of Australia [2022] FCA 74. The variation removed from the Determination an exclusion preventing the native title holders from exercising their native title rights for a commercial or business purpose, so achieving consistency as to the use of resources between different groups in the region. The native title rights and interests are described in full later in these reasons. The findings the subject of the Determination (as amended) are adopted pursuant to s 86(1)(c) of the Native Title Act. A map of the Determination area is attached to these reasons as Attachment 1.

22    As explained below, the claim area extends to an area outside the Determination area. However, there is no requirement under the Project Act that there be a determination of native title prior to determining compensation, and the parties agreed that it was open to proceed on this basis.

The McArthur River Project

23    The McArthur River Project involves the mining, processing and transporting of zinc-lead-silver ore. It is the subject of the McArthur River Project Agreement made between the Northern Territory and Mount Isa Mines Limited (MIM) on 25 November 1992. The Project Agreement was entered into to provide for the grant of mineral leases by the Northern Territory to MIM and to facilitate the development, construction and operation of the Project. The Project Agreement was ratified by the Project Act (the Project Agreement is a schedule to that Act).

24    The Project mine site and associated processing sites are on five contiguous mineral leases, identified as MLNs 1121-1125 respectively, on Gudanji country. The site is about 45 km south-west of the town of Borroloola. The ore is transported to the coastal port at Bing Bong, within the area of a sixth mineral lease, MLN 1126, which is on Yanyuwa and Yanyuwa-Marra country. Non-pastoral use permits facilitate the storage of dredge spoil on areas adjacent to the port.

25    The following map shows the claim area marked in blue, with the four main features associated with the Project (mine, port, road and pipeline) identified:

26    The Project has had a significant impact on the land where it is situated and surrounding areas. The mine expanded from an underground mine to open-cut. Part of the McArthur River was diverted to accommodate its operations.

27    On the coast at Bing Bong, the mine's port facility was built, which required the dredging of a channel to accommodate barge access, and use of nearby areas on land to deposit the dredge spoil.

28    The Claim Group quoted the evidence of Billy Coolibah (deceased):

When that open cut mine happened, it destroyed the country real bad. They cut open the country and they moved the river. Now when I see that mine, it make me feel no good. That feeling you get when you're worried about country, it's called gurunulu. It means your heart is no good and you're feeling sad. And my mind is really sad too because I'm worried for my people because that country is hurt by the mine. The country been damaged up, they gone in like a mob of worms. Then they diverted the river, that snake is still there, nobody can change that snake, but when they diverted the river, they cut that snake dreaming. Bad things happen when you cut the dreaming. Bad things like people getting sick. I think some people have got sick from the mine. We're frightened all the time. (affidavit 28 January 2017)

29    There will be cause later in these reasons to examine a large body of lay and expert evidence about both the mine and the port, but Billy Coolibah's evidence captures some of the difficult issues that inform the history of this claim and the compensation sought.

Procedural background to the compensation claim

30    The Claim Group members are the native title holders recognised by the Determination.

31    On 14 December 2020 the first applicant (constituted by eight members) filed an application on behalf of the Claim Group for determination of compensation under s 61(1) of the Native Title Act (NTD 25 of 2020) for certain acts done in connection with the Project.

32    A procedural issue arose in relation to the original compensation application. After it was filed, the first applicant sought to amend it in a manner that purported to increase the area of lands and waters covered by the original application to areas which were outside the area of the original application. I found that the operation of s 64(1A) and s 64(1) of the Native Title Act did not permit an amendment in those circumstances, and accordingly refused the amendment application: Davey on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra Peoples v Northern Territory of Australia [2023] FCA 303 (Davey (No 1)).

33    Following that decision, a differently constituted applicant filed a further compensation application in June 2023 (NTD 16 of 2023). The application described the relevant area so as to include (relevantly) the two areas that the first applicant had unsuccessfully sought to include by the amendment application. The two areas are outside the area of the Determination, although the parties may separately seek a determination of native title over those areas in due course.

34    By orders made on 15 August 2023, NTD 25 of 2020 and NTD 16 of 2023 were consolidated into a single proceeding to continue as proceeding NTD 25 of 2020, and the application in NTD 16 of 2023 was taken to be the originating application in the consolidated proceeding from the date it was filed (6 June 2023).

35    On 13 February 2024 the respective applicants filed an amended consolidated application and unless the context requires otherwise, it is only necessary to refer to the consolidated application.

The parties

36    The first and third applicants are native title holders who are authorised by the Claim Group to seek compensation. It is not in issue that the applicants have standing to bring the compensation application.

37    Following the consolidation, the first applicant in NTD 25 of 2020 continues to be designated as the first applicant in this proceeding. Top End (Default PBC/CLA) Aboriginal Corporation RNTBC continues to be designated as the second applicant. The applicant in NTD 16 of 2023 is designated as the third applicant. What matters is that each application and the consolidated application is effectively brought by the Claim Group.

38    The second applicant is a registered native title body corporate. It is the native title body corporate for the area covered by the Determination.

39    The respondent, the Northern Territory, is the party liable to pay compensation under the Project Act and, if applicable, the Native Title Act, in relation to compensable acts.

40    The Attorney-General of the Commonwealth is an intervener in the proceedings under s 84A(1) of the Native Title Act. The Commonwealth's interest in the proceedings lies in the principles applicable to questions of liability and quantum under the Native Title Act, and the development of relevant methodologies for the assessment of the quantum of such compensation. The Commonwealth did not seek to be heard in relation to issues arising solely under the Project Act. References to 'the parties', unless the context suggests otherwise, do not include the Commonwealth.

The Claim Group

41    The Claim Group is described in the application as follows (renumbered for convenience):

The Claim Group on whose behalf the application is made are Gudanji, Yanyuwa and Yanyuwa-Marra Aboriginal Peoples:

(1)    who are members of the following estate groups:

(a)    Kamanja (Wuyaliya);

(b)    Ngurrmu/Jawuma (Rrumburriya);

(c)    Pupuwina (Rrumburriya);

(d)    Mangurrungurru/Wulkuwulku (Wuyaliya);

(e)    Mawuli (Wuyaliya);

(f)    Wurruwiji (Wurdaliya);

(g)    Jirrinmini (Mambaliya);

(h)    Gulpalyi (Wurdaliya);

(i)    Garambarini (Wurdaliya);

(j)    Gulaurruna (Rrumburriya);

(k)    Warrgi (Wuyaliya);

by reason of:

(i)    patrilineal descent;

(ii)    his or her mother, father's mother or mother's mother being or having been a member of the group by reason of patrilineal descent;

(iii)    having been adopted or incorporated into those descent relationships;

(2)    who, in accordance with traditional laws and customs, have rights in respect of the application area, subject to the rights and interests of the estate group members referred to at (1), being:

(a)    members of estate groups from neighbouring estates, including Karranjini (Rrumburriya);

(b)    spouses of the estate group members referred to at (a).

42    The description of the Claim Group corresponds to the description of the group determined to hold native title in the Determination, save for the reference to the neighbouring estate group (at (2)(a) in the description immediately above). However, the difference is not significant, as cl 7 of the Determination provides that:

In accordance with traditional laws and customs, other Aboriginal people have native title rights and interests in respect of the Determination Area, subject to the native title rights and interests of the estate group members, such people being:

(a)    members of estate groups from neighbouring estates;

(b)    spouses of the estate group members.

Nature of the native title rights

43    'Native title' or 'native title rights and interests' are defined extensively in s 223 of the Native Title Act. The parties agree that the native title rights of the Claim Group, consistent with the definition in s 223(1), have a physical or material aspect (s 223(1)(a) – rights in relation to land); and a cultural or spiritual aspect (s 223(1)(b) – connection with land).

44    The native title rights and interests of the Claim Group were pleaded in the (consolidated) application as follows (renumbered):

(1)    Other than in relation to the [MLN 1126] seaward area, the native title rights and interests of the Claim Group in relation to the compensation application area for which compensation is claimed are the non-exclusive rights being:

(a)    the right to travel over, to move about and to have access to the area;

(b)    the right to hunt and to fish on the land and waters of the area;

(c)    the right to gather and to use, and to take, for any purpose, the natural resources of the areas such as food, medicinal plants, wild tobacco, timber, stone and resin;

(d)    the right to take and to use the natural water on the areas, but not including the right to take or use water captured by the holders of Perpetual Pastoral Lease No. 1051 (PPL 1051);

(e)    the right to live, to camp and for that purpose to erect shelters and other structures on the area;

(f)    the right to light fires on the area for domestic purposes, but not for the clearance of vegetation;

(g)    the right to conduct and to participate in the following activities on the area:

(i)    cultural activities;

(ii)    cultural practices relating to birth and death, including burial rites;

(iii)    ceremonies;

(iv)    meetings;

(v)    teaching the physical and spiritual attributes of sites and places on the area that are of significance under their traditional laws and customs;

(h)    the right to maintain and to protect sites and places on the area that are of significance under their traditional laws and customs;

(i)    the right to share or exchange resources obtained on or from the area;

(j)    the right to be accompanied on to the area by persons who, though not native title holders, are:

(i)    people required by traditional law and custom for the performance of ceremonies or cultural activities on the area;

(ii)    people who have rights in relation to the area according to the traditional laws and customs acknowledged by the estate group members;

(iii)    people required by the estate group members to assist in, observe, or record traditional activities on the area;

(k)    the right to conduct activities necessary to give effect to the preceding rights.

(2)    In relation to the [MLN 1126] seaward area, the native title rights and interests are the following non-exclusive rights:

(a)    the right to access, to remain in and to use the area, alternatively, to travel over, to move about and to have access to the area;

(b)    the right to gather and to use, and to take, for any purpose, the natural resources of the area.

(3)    The native title rights and interests:

(a)    do not confer on the Claim Group possession, occupation, use and enjoyment of the application area to the exclusion of all others;

(b)    are subject to and exercisable in accordance with:

(i)    the traditional laws and customs of the Claim Group;

(ii)    the laws of the Northern Territory of Australia and the Commonwealth of Australia.

(4)    There are no native title rights and interests in:

(a)    minerals as defined in s 2 of the Minerals (Acquisition) Act (NT));

(b)    petroleum (as defined in s 5 of the Petroleum Act (NT));

(c)    prescribed substances (as defined in s 3 of the Atomic Energy (Control of Materials) Act 1946 (Cth) and/or s 5(1) of the Atomic Energy Act 1953 (Cth);

in the application area.

45    Leaving aside the inclusion of (2) relating to the MLN 1126 seaward area (which was not the subject of the Determination), the nature of the native title rights set out in the application are consistent with the native title rights recognised in the Determination.

46    As to the MLN 1126 seaward area, the Northern Territory agrees with the description of the native title rights and interests set out above but adds that after sovereignty, any native title right or interest of the Claim Group which amounted to a right to exclusive possession of the waters of the MLN 1126 seaward area could no longer exist by consequence of inconsistency with common law public rights of navigation and fishing, and the right of innocent passage. The Northern Territory also pleads that at all relevant times, the native title rights in the MLN 1126 seaward area were held solely by the Yanyuwa and Yanyuwa-Marra Peoples. These two qualifications do not have a practical effect on the outcome of the compensation claim.

47    The parties agree that there are no native title rights and interests in minerals, a matter made express in the Determination.

The claim area

48    The claim area comprises approximately 130.7 km2. As noted, PPL 1051 as a whole comprises some 7225 km2.

List of statutes referred to

49    There are many Acts referred to throughout these reasons. For convenience, the full titles of the Acts frequently referred to are listed here. I have condensed and defined the names of the Acts specific to the Project for convenience:

(a)    Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

(b)    Energy Pipelines Act 1981 (NT);

(c)    McArthur River Project Agreement Ratification Act 1992 (NT) (Project Act);

(d)    McArthur River Project Agreement Ratification Amendment Act 1993 (NT) (Project Amendment Act 1993);

(e)    McArthur River Project Amendment (Ratification of Mining Authorities) Act 2007 (NT) (Project Amendment Act 2007);

(f)    Mine Management Act 1990 (NT);

(g)    Mineral Titles Act 2010 (NT); and

(h)    Mining Act 1980 (NT);

(i)    Mining Management Act 2001 (NT);

(j)    Native Title Act 1993 (Cth);

(k)    Northern Territory Aboriginal Sacred Sites Act 1989 (NT).

(l)    Pastoral Land Act 1992 (NT); and

(m)    Racial Discrimination Act 1975 (Cth).

PART B – THE COMPENSABLE ACTS

50    The Claim Group seeks compensation for economic loss and cultural loss.

51    The High Court in Griffiths HC (at [54], [84]) confirmed that assessment of compensation under the Native Title Act must include components for both economic and non-economic loss. The parties agree that similarly, compensation under the Project Act should include those two components. The Claim Group also seeks interest at a statutory rate.

52    I will use the term 'compensable acts' to describe the acts identified by the Claim Group as those for which compensation is sought.

53    The Claim Group revised the number and nature of compensable acts in iterations of the pleaded case before and during the trial. In the end, there were six compensable acts relied upon, based on the second further amended statement of claim, the written and oral closing submissions and the consolidated application. I introduce these acts at this point, together with a summary of the Northern Territory's position in relation to each. Further detail is provided later in these reasons.

(1)    MLNs 1121-1126

54    The compensable act asserted is the grant by the Northern Territory to MIM of five contiguous mineral leases, being MLNs 1121-1125, located on PPL 1051, together with MLN 1126, separately located at Bing Bong on the coast. The acts are described as the grants of those mineral leases on 5 January 1993 under the Mining Act, and their validation and regrant on 30 June 1993 as a result of the Project Amendment Act 1993.

55    The Northern Territory admits liability for compensation under the Project Act in relation to the grant, validation and regrant of MLNs 1121-1126.

(2)    Enactment of s 4AB of the Project Act – open-cut authorisation

56    The compensable act asserted is the enactment on 4 May 2007 of s 4AB of the Project Act (introduced by operation of the Project Amendment Act 2007) which validated the issue of the open-cut authorisation for the mine, including its conversion from underground to open-cut operation. The Claim Group disavowed any determination of claims based on the authorisation and its validation as separate acts. They submitted that in any event the effects (for example, of open-cut mining) remained relevant to the determination of compensation for cultural loss.

57    According to the Claim Group, little turns on whether or not the enactment of s 4AB was a compensable act in terms of compensation. They submitted that once it is accepted that economic loss flows from the grants of MLNs 1121-1126, there is no further economic loss that arises by way of the enactment of s 4AB. They also submitted that the Northern Territory appears to accept that the open-cut mine is relevant to the assessment of cultural loss. Despite these submissions, the Claim Group maintained their reliance on the enactment of s 4AB as a separate compensable act.

58    The Northern Territory denies the enactment effected an acquisition of property. It denies the Claim Group gave notice of a claim in relation to this act as required under the Project Act.

(3)    MLN 582 renewals

59    The compensable act asserted is the renewals of MLN 582 on 25 July 2000 and 4 February 2020 under the Mining Act and the Mineral Titles Act respectively.

60    The Northern Territory admits the renewals effected an acquisition of property other than on just terms but only insofar as the Claim Group were subsequently deprived of the use of the surface of the land. The Northern Territory denies there has been any such deprivation or, as a matter of fact, any disturbance to the land. It denies the Claim Group gave notice of a claim in relation to these acts as required under the Project Act or gave notice of any claim that related to MLN 582.

(4)    Dredge spoil non-pastoral use permits

61    This is the one compensable claim where a claim for compensation under the Native Title Act is brought in the alternative to a claim under the Project Act.

62    Between 1994 and 2010 the Pastoral Land Board and its delegates granted non-pastoral use permits under the Pastoral Land Act to McArthur River Mining Pty Ltd (MRM), a subsidiary of MIM. Fifteen permits were granted between 9 April 1994 and 26 February 2010 permitting use of certain land and waters within the PPL 1051 area for the establishment, operation and management of dredge spoil ponds in connection with the port operations.

63    The Claim Group maintains the grants of the permits constituted an acquisition of property not on just terms entitling them to compensation under s 4B of the Project Act. Further, or in the alternative, the Claim Group plead that the grant of permits after 1 January 1994 and before 23 December 1996 (of which there are three, referred to as the pre-1996 non-pastoral use permits) are intermediate period acts within the meaning of s 232A of the Native Title Act, for which the Claim Group is entitled to compensation under s 22G of the Native Title Act.

64    The Claim Group maintains no alternative Native Title Act claim in relation to the balance of the non-pastoral use permits, such claim having been abandoned at the end of the trial.

65    The Northern Territory denies liability under the Project Act in relation to (all) the non-pastoral use permits. It denies the permits were relevant administrative acts under the Project Act and contends that their legal force derives from the Pastoral Land Act. It denies the permits effected any acquisition of property. Other than for the pre-1996 non-pastoral use permits, it denies notice of any claim was made as required under the Project Act.

66    The Northern Territory accepts liability for the pre-1996 non-pastoral use permits under the alternative Native Title Act claim. It accepts such acts are compensable intermediate acts attributable to it in accordance with s 22G of the Native Title Act and that the Claim Group may recover compensation from the Northern Territory.

67    The Claim Group's position (stated in its 'topics for closing oral submissions') is that liability for compensation under the Native Title Act is only relevant if liability is not established under s 4B of the Project Act.

(5)    Road

68    The claimed compensable act is the construction of a Road between the mine and the port by the Northern Territory, extending to adjacent areas incidental to the Road's construction, establishment or operation. The Project Agreement required the Northern Territory to construct and maintain the Road. Construction of the Road relevantly commenced in 1994.

69    The Northern Territory admits liability under s 4B of the Project Act insofar as new areas of the Road are concerned. It pleads that part of the Road was built over areas where native title interests had already been extinguished. Where such interests were extinguished, there was no acquisition of property by the construction of the Road. The only issue is the extent of prior extinguishment over the site of the Road. The Northern Territory assesses that the area of the deviation from the pre-existing road, and so the area for which compensation is payable, is an area of only 2.44 km2, and so comprises a relatively minor part of the Claim Group's claim.

(6)    Pipeline Licence

70    The claimed compensable act is the grant by the Minister of Pipeline Licence No. 17 under the Energy Pipelines Act to NT Gas Pty Limited on 10 May 1994. The licence was granted to operate and maintain the gas pipeline to the mine, in order to generate electricity for its operations.

71    The Northern Territory admits that the grant of the Pipeline Licence was a relevant administrative act for the purpose of the Project Act but contends that there was no acquisition of property effected. However, it says that even if there were an acquisition, it was on just terms as the Claim Group were entitled to compensation under a compensation scheme provided by s 59(2) of the Energy Pipelines Act.

PART C – THE TRIAL

72    The trial proceeded with an on-country hearing over the course of four days in June 2023, followed by expert evidence given in Darwin over eight days. Closing submissions were delivered in Darwin in late November 2023.

73    It was then necessary to deal with the consolidation of the applications and certain amendments to the statement of claim, arising from a narrowing of the matters pursued by the Claim Group. The final amended statement of claim and amended compensation application were filed in January 2024 and February 2024 respectively. Supplementary submissions intended to be limited to identified topics were filed in October 2025. An application by the Northern Territory to re-open its case as a result of execution of the ILUA was made in February 2026 (the application is dealt with in Part M).

Lay evidence

74    In general, I will deal with relevant lay evidence progressively in these reasons when addressing the issues to which it relates. It is useful however, to provide an overview of the four days on country. Many sites and features are referred to in the summary and are explained further in the reasons dealing with cultural loss. I use the expression Court party to refer to not only those involved officially on behalf of the Court but the travelling group as a whole, which included Claim Group representatives, counsel, legal representatives and (when required for access and safety reasons) MRM representatives.

Evidence taken on country and in Borroloola

75    The members of the Claim Group who gave evidence on country in relation to the mine area were Casey Davey, Chris Pluto, Jack Green, Asman Rory and Ronnie Raggett.

76    The members of the Claim Group who gave evidence on country in relation to the port area were Mavis Timothy, David Harvey, T Simon (deceased) and Warren Timothy.

77    Each of these witnesses gave evidence in chief by affidavit. Those affidavits were tendered and remaining objections were determined at the time.

78    The on-country part of the hearing was documented by photographs taken by Registrar Colbran of this Court and various route maps, as well as by transcript. The parties subsequently agreed on a written description of the events of the first three days on country. This description together with route maps and photographs (Agreed Inspection Note) was received as an exhibit in the proceeding.

79    I acknowledge the assistance of MRM with the logistics for the site visit and various practical matters. The Northern Land Council (NLC) also assisted greatly in this regard, both on country and at the Borroloola Rodeo Ground hearing site.

Day one

80    Some of the features referred to in this section are marked in the extract of a map, part of which is included as Attachment 2. The source map is referred to in the evidence in Part L below as Map 4 and is part of the expert report of Dr David Trigger. Due to its size, it is not practical to reproduce the map as a whole and not all features are included, but Attachment 2 provides some assistance in understanding the course of the McArthur River, the mineral lease boundaries, and the proximity to the mine area of cultural sites and the paths of certain Dreamings. The numbers in the reasons reflect the identifying numbers used by Dr Trigger in Map 4.

Gulpalyi – Old McArthur River Station – Gudanji country

81    The Court party met at Borroloola and travelled to Gulpalyi (#29), also known as Eight Mile Waterhole, on the McArthur River. Gulpalyi is within PPL 1051, south of MLN 1123. The Court party was welcomed on country by members of the Claim Group. Asman Rory, supported by Casey Davey and others, explained the calling out to country when visiting with strangers, and provided a general introduction to the camping, hunting and cultural responsibilities at Gulpalyi.

82    The Court party travelled in convoy to the Old McArthur River Station, passing three burial sites and a rocky outcrop known as Jalyanini (#37) associated with Rainbow Serpent Dreaming. These features were pointed out by Ronnie Raggett.

83    The Old McArthur River Station (#47) is situated on Gudanji country. Claim Group members conducted a calling out and welcome ceremony, including a Gudanji dance.

84    Ronnie Raggett and Chris Pluto gave evidence at this site. The area and nearby surroundings are associated with Rainbow Serpent Dreaming. They pointed out a number of features including sacred ceremony and burial sites, the Coolibah Tree (#54) and sites of other camping and Gudanji customs.

Day two

McArthur River Mine – various viewing sites

85    On the second day on country the Court party participated in viewings at the McArthur River mine site. It viewed from identified safe vantage points the northern overburden emplacement facility (NOEF), the south perimeter runoff dam, the open pit, the southern overburden emplacement facility (SOEF), the mine levee wall and the tailings storage facility. A large geopolymer cover was observed. These sites are within MLNs 1122-1124.

86    Ronnie Raggett, Chris Pluto, Jack Green and Casey Davey assisted by pointing out sites.

87    From the NOEF viewing site within MLN 1124, Ronnie Raggett pointed out features including Mimbiri over to the east; Dardalani (a small spring, #59); Nanbadini (a waterhole, #42); Yukuwala (a rocky area associated with the Yukuwala Turtle Dreaming, #62); the Garbula Tree (a mature gum tree on the banks of the McArthur River, #58); Barney Hill (also known as Malayarrininni, within the mine site, #52); Bulwina (low hills west of the mine, a place of White Dingo Dreaming, #31); Surprise Creek; and Damangani (a rocky ridge in the mine area, #66). Some of these features are referred to in a register of sacred sites and other evidence, expanded upon in Part L.

88    From the Damangani viewing site within MLN 1122, it was possible to see a perspective of the size of waste rock relative to Damangani. Chris Pluto pointed out Damangani itself, and also the bund wall that 'cut the snake'. He also indicated the location of artefact scatters. Jack Green also described artefact scatters.

89    The open pit look-out site within MLN 1122 provided a view of the open pit in the area which was originally the path of the McArthur River. Jack Green explained the path of the Snake from Mimbiri to Barney Hill, down to the Garbula Tree, close to the old river path. Chris Pluto pointed out the meeting point of Surprise Creek and the McArthur River.

90    The SOEF site within MLN 1122 contains overburden that will eventually be relocated. From the viewing site Ronnie Raggett pointed out features including Mumunini (#60), which is a rock outcrop and rocky hill, also referred to as Green Snake Hill, relevant to the path of the Rainbow Snake (Yulanji or Walungudara) and regarded as a dangerous site, according to anthropological evidence; Balinmini (a high ridge, also part of the Snake Dreaming, #67); and Diwarra warra (also known as Slab Top Hill, #44).

91    The tailings storage facility was viewed, before the Court party stopped at a site within MLN 1123 for the taking of evidence. Each of Jack Green, Casey Davey, Chris Pluto and Asman Rory gave evidence at this location.

Day three

92    On day three the Court party travelled to the coast and observed the area around the port, including areas of MLN 1126. This area is culturally significant to hunting, fishing and camping.

Home Creek/Mawuli on the coast

93    The day commenced by the coast at Home Creek, also known as Mawuli. Mawuli is on Yanyuwa or Yanyuwa-Marra country and is the coastal area west of MLN 1126 within PPL 1051, outside the claim area. There was a calling out by Dinah Norman and a minute's silence led by Warren Timothy. Witnesses who gave evidence at this site were T Simon (deceased), David Harvey, Mavis Timothy and Warren Timothy.

94    Some of the features are identified by numbers on a site map in evidence through the expert anthropologist Dr John Bradley, and for convenience the numbers are again included with the descriptions below. An extract of the map, with some features identified, is Attachment 3 to these reasons. An extract of an aerial photo of the area with the port infrastructure and part of the MLN 1126 and non-pastoral use permit areas superimposed is Attachment 4.

95    From the site David Harvey pointed out features including Wilarri (#10, an area at the headwaters of Mule Creek, near where it enters the sea); Aburri-Babalungku (#12, reef area to the north of MLN 1126 and west of West Island (Mamadthamburi), and the site of the dreamtime Sea Turtle Dreaming); Wurruwiji (#2, which includes the coastal beach area on MLN 1126 that extends east of the port, sand flats and sea grass beds to the north and some of the hinterland to the south); and Arrinyanda (#1, the coastal area stretching north west of Wurruwiji (#2) from the port, including areas of the beach and saltpan).

96    Mavis Timothy pointed out features including Wurruwiji (#2); Wathangka (South West Island); casuarina trees (amarrabala); Mule Creek; the old boat ramp on Mule Creek; and Maban (#13, Maabayj, connected to Sea Turtle Dreaming) on West Island. Both West Island and South West Island are just off the coast and east of the port.

Bing Bong port facility viewing platform

97    A viewing was conducted from the Bing Bong port facility viewing platform west of MLN 1126. The barge used to transfer concentrate to vessels offshore could be seen, along with West Island, South West Island and Centre Island, the loading facility and concentrate storage shed.

98    The area of the dredge spoil ponds was also observed on the southern boundary of MLN 1126 and straddling non-pastoral use permit area NP003.

99    Warren Timothy, David Harvey and T Simon (deceased) pointed out the dredge channel; Arrinyanda #1; Aburri-Babalungku #12; Liwintha #11 (a large reef to the south of West Island); and Wimanda #4 (a small lagoon area inland and south-west of MLN 1126, associated with the Winter Rain Dreaming).

Wurruwiji – east of Bing Bong port facility

100    The final on country location was the coastal area east of the Bing Bong port facility and east of MLN 1126. Warren Timothy and T Simon (now deceased) gave evidence at this site.

101    Warren Timothy was able to point to features including Makukula (#5, one of the main camping areas at Bing Bong, near Home Creek); an island on the other side of the port where he camped as a child; Mule Creek; King Ash Bay; Jawuma (Black Rock Landing); Rosie Creek and a small creek that ran where the port channel is now sited. T Simon (deceased) pointed out Mule Creek and various tracks to the south, and brought a fishing harpoon for viewing.

102    The Court party then left the coast, travelling inland to the Rodeo Ground in the township of Borroloola, where David Harvey and T Simon (deceased) were cross examined.

Day four

103    The Court party re-convened at Borroloola, where Chris Pluto, Asman Rory, Ronnie Raggett, Mavis Timothy and Jack Green were cross examined.

Evidence from Claim Group members and cultural concerns

104    As noted, each of the witnesses who gave evidence on country gave evidence in chief by affidavit. Accordingly, there were affidavits in evidence from each of David Harvey, Warren Timothy, T Simon (deceased), Chris Pluto, Asman Rory, Ronnie Raggett, Casey Davey, Mavis Timothy and Jack Green.

105    The Claim Group also tendered affidavit evidence of Timothy Lansen (in relation to the mine) and Dinah Norman (in relation to the port), but neither were required for cross examination.

106    Affidavits of each of Bruce Joy (deceased), Harry Lansen (deceased) and Fred Raggett (deceased) were also tendered. The affidavits of Bruce Joy, Harry Lansen and Fred Raggett were made in 2001 in support of an objection to an expedited procedure for the grant of an exploration licence which covered part of the compensation application area. In relation to witnesses who are deceased, I sought guidance from the NLC on behalf of the Claim Group as to how those witnesses should be referred to in these reasons. I have followed the guidance provided.

107    An affidavit of Billy Coolibah (deceased) was also tendered. It was made in 2017. Martyn Gray, a solicitor working with the NLC, deposed to his understanding that the affidavit was made after Billy Coolibah informed the NLC that he had a terminal illness and he wished to provide evidence in relation to the Project compensation claim. Billy Coolibah died later that year.

108    In relation to all of the oral evidence of the Aboriginal witnesses, the parties were guided by a 'Statement of Cultural and Customary Concerns' prepared by the Claim Group with the assistance of anthropologists Dr Trigger and Dr Bradley. The statement provided assistance as to the manner in which evidence might best be taken from the Claim Group members, and covered such topics as varying facility in the English language, caution in changing topics without notice, mispronunciation of place names and language words, questions about time, numbers, dates and years, questions using kinship terms such as 'father' and 'mother', silence and delay in answering questions, questions about secret law and gender restricted evidence.

109    Section 82 of the Native Title Act provides that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders, and expressly permits the Court to take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders in the conduct of proceedings under the Native Title Act. These powers are reflected in r 34.119 to r 34.123 of the Federal Court Rules 2011 (Cth). It was not in issue that these rules and powers applied, having regard to the alternative Native Title Act claims.

110    Section 72 and s 78A of the Evidence Act 1995 (Cth) also recognise these cultural and customary concerns by providing for the admissibility of evidence about the existence and content of the traditional laws and customs of an Aboriginal or Torres Strait Islander group, as an exception to the hearsay and opinion rules.

111    The Northern Territory consented to orders that the adducing of oral evidence from the Claim Group witnesses should be undertaken having regard to the guidance provided by the Statement of Cultural and Customary Concerns as to both the manner of questioning of Claim Group witnesses and the taking of evidence in consultation.

112    The parties were consulted about the transcript, having regard to the use of many language words, and requested a number of amendments by consent which were incorporated into a revised transcript.

113    For completeness, I note that the Claim Group also tendered affidavit evidence from two solicitors (Ben Kelly and Martyn Gray, both of the NLC) and a cartographer (Stewart Pittard). The evidence is referred to separately.

Tender of affidavit lay evidence by Northern Territory

114    Similarly, the Northern Territory tendered affidavit evidence. The deponents were not cross examined.

Maria Wauchope

115    Maria Wauchope was the Executive Director of Rangelands within the Northern Territory Department of Environment, Parks and Water Security (DEPWS) and gave evidence with respect to the historic pastoral activity over the area now the subject of PPL 1051. Ms Wauchope also adduced evidence of records of the administration of the pastoral lease, including its monitoring and inspection.

Chandan Kalase

116    Chandan Kalase was a civil engineer in the position of Executive Director of Transport Planning within the Transport and Civil Services of the Northern Territory Government Department of Infrastructure, Planning and Logistics. He gave evidence as to the Northern Territory's road network, including the history of grants relating to the Carpentaria Highway and Bing Bong Road corridors through the pastoral lease area, and the variation of alignment of those roads. Maps of the current alignment of those roads were provided.

Simon Gummer

117    Simon Gummer was the Manager of Environmental Operations, within Environmental Regulations in the Environment Division of the DEPWS. His evidence related to environmental assessments of the Project, monitoring of discharge under waste discharge licences and the identification and monitoring of environmental risks such as air quality and water quality.

Frank Daly

118    Frank Daly was the Chief Executive Officer of the Northern Territory Department of the Chief Minister and Cabinet. Mr Daly gave evidence, subject to certain relevance objections, as to other agreements under which the Northern Territory asserts that local Aboriginal groups have already received benefits from the Commonwealth, the Northern Territory or MRM, relevantly referred to later in these reasons as the 1994 Agreement and the 2007 Agreement (or the McArthur River Mine Community Benefits Trust). The evidence is said by the Northern Territory to be relevant to the question addressed in Part M of whether and how other benefits received by the native title holders are to be taken into account in the assessment of compensation.

Lijo John

119    Lijo John's evidence is relevant to the Pipeline Licence. Mr John was employed by the Northern Territory Department of Industry and Trade (DITT) as a facilities and pipeline engineer. Mr John gave evidence about those parts of the pipeline that overlap and traverse the pastoral lease area.

Ritnesh Syna

120    Ritnesh Syna was the Acting Director of Assessment and Compliance, Mining Operations in the Mines Division of the DITT. At the time of preparing his affidavit he was a mining officer under the Mining Management Act and was the internally designated controlling officer at DITT for the McArthur River mine.

121    By his affidavit (and a supplementary affidavit that edited a number of matters) Mr Syna gave general evidence as to the regulation of mining activities in the Northern Territory, including the statutory and practical processes for authorisation, security and remediation. More particularly, he provided copies of numerous documents that relate to the McArthur River mine, including historic records dating back to the 1960s, exploration licences, progress reports, annual reports, various reports to the Department (including in its previous iterations), mineral leases, maps, numerous and various communications with the DITT relating to matters such as environmental management plans, tailings and dredge spoil management plans, unplanned closure plans and communications as to the amount of rehabilitation security, mine authorisations and audits.

Expert evidence

122    Expert evidence was heard in Darwin over the course of eight days.

123    Expert anthropological evidence was adduced on behalf of the Claim Group by Dr Trigger (report dated 7 July 2022), Dr Bradley (report dated 16 September 2022) and Mr Gareth Lewis (report dated 22 September 2022). For convenience, and without meaning any disrespect, I generally refer to Associate Professor Bradley and Professor Trigger as Dr Bradley and Dr Trigger respectively. They were both cross examined. Mr Lewis was not cross examined.

124    The Claim Group also tendered a report of an expert historian, Dr Robyn Smith (report dated 22 September 2022). Numerous objections to the content of the report were conceded or otherwise agreed and a redacted form was in evidence. Dr Smith was not required for cross examination.

125    Expert environmental evidence was adduced on behalf of the Claim Group by Associate Professor Gavin Mudd (Dr Mudd) (report dated 23 September 2022) and Mr Renato D'Ercole (report dated 23 September 2022). The Northern Territory relied on evidence from Dr Alan Robertson (report dated 27 June 2023). The experts gave evidence and were cross examined in conclave.

126    Both the Claim Group and the Northern Territory called expert registered valuers who provided opinions as to the market value of the freehold of the claim area. The Claim Group called Mr Ross Copland (report dated 27 September 2022, supplemented by an addendum relating to the Road). The Northern Territory called Mr Pat Lyons (report filed 17 March 2023). These experts also gave evidence and were cross examined in conclave.

127    As to expert economists, the Claim Group called Mr Greg Houston (report dated 29 September 2022). The Northern Territory called Mr Euan Morton (report dated 22 March 2023). These experts gave evidence and were cross examined in conclave.

128    Various amendments to the expert reports were engrossed following the trial and the amended reports were inserted as exhibits in the Court Book.

PART D – HISTORY OF CLAIM AREA

The claim area

129    The claim area has a long history of pastoral interests and mineral exploration. The Northern Territory provided a useful summary of this history, and much of what follows in this Part is based on that summary and was not relevantly in issue.

130    The claim area became part of the colony of New South Wales on 7 February 1788: Rrumburriya Borroloola Claim Group v Northern Territory of Australia [2016] FCA 776; (2016) 255 FCR 228 at [43] (Mansfield J). It may be assumed that at that time the Claim Group members had exclusive native title: that is, their rights comprised the right to occupy, use and enjoy the claim area to the exclusion of all others: Borroloola at [43].

131    The acquisition of sovereignty by the Crown was not inconsistent with and did not extinguish native title, but the Crown acquired a radical title which enabled it to extinguish rights and interests in the claim area, including the native title rights and interests: Mabo v Queensland (No.2) (1992) 175 CLR 1, 48, 64 (Brennan J, Mason CJ and McHugh J agreeing). The Northern Territory proceeded on the basis that native title was vulnerable to extinguishment by the Crown, subject to constitutional limits and statutory protections, citing the conclusion of the Full Court in Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75; (2023) 298 FCR 160 (Yunupingu FC) at [478]-[480], a conclusion not challenged by the Northern Territory in Commonwealth of Australia v Yunupingu [2025] HCA 6 (noting [113 fn 181]).

132    In 1863 the claim area became part of the colony of South Australia and the radical title passed to the Crown in right of that colony: Margarula v Northern Territory of Australia [2016] FCA 1018; (2016) 257 FCR 226 at [3] (Mansfield J). In 1911 South Australia surrendered the Northern Territory to the Commonwealth: Margarula at [6]. The Northern Territory was granted self-government in 1978: Margarula at [15].

Grant of pastoral interests

133    The first significant non-Indigenous settlement of the region occurred in the 1880s, through the statutory grant of successive pastoral interests over the whole of the claim area. The effect of the grant of pastoral leases was to extinguish exclusive native title rights but such rights continued to co-exist with pastoral rights: Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HC) at [52], [192], [219], [417]; and Griffiths HC at [69].

134    On 4 March 1993 the various pastoral leases were consolidated into pastoral lease PPL 1051, granted to MIM. MIM operates the pastoral lease as a commercial cattle station.

135    With two exceptions (the part of the road within the Narwinbi Aboriginal Land Trust area and the seaward side of MLN 1126, as explained in Davey (No 1)), the whole of the claim area falls within PPL 1051 and the native title rights are subject to those overlapping pastoral rights: s 44H of the Native Title Act ('Rights conferred by valid leases etc').

Mineral exploration and ownership

136    The 1880s also saw the commencement of mineral exploration within the claim area.

137    By about 1948, MIM had intensified its activities in the area. By this time radical title to the claim area, including the minerals within it, had passed to the Commonwealth: Margarula at [6]. The Mining Ordinance 1939 (NT) was enacted under the Northern Territory (Administration) Act 1910 (Cth), and it provided that all minerals or metals found on or below the surface of land in the Territory was deemed to be the property of the Crown. The Minerals (Acquisition) Ordinance 1953 (NT) provided that all minerals on or below the surface of land in the Territory were acquired by and vested in the Crown.

138    Therefore, the minerals of the claim area were the property of the Crown and available for its sale by grant of mineral leases.

139    The effect of the grant by the Crown of a mining or mineral lease was described by Windeyer J in Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177 at 192 as:

… really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties.

This description was cited by the High Court in Newcrest Mining (WA) Ltd v The Commonwealth of Australia (1997) 190 CLR 513 at 616 (Gummow J), which was in turn cited in Ward HC at [285].

140    The Claim Group does not seek compensation for the effect of that vesting of title to minerals and no native title rights are claimed to minerals. Claims based on the enactment of the Mining Ordinance 1939 (NT) or the Minerals (Acquisition) Ordinance 1953 (NT) referred to in Yunupingu FC at [31]-[36] do not arise in this proceeding.

141    In 1955 MIM identified the 'Reward' lead prospect (now the subject of MLN 582) and the 'Here's Your Chance' (HYC) deposit (now the subject of MLNs 1121-1125). The Reward prospect has not been developed. Exploration focussed on the HYC deposit, described in the Project Agreement as a major zinc, lead and silver deposit.

142    As noted, the Northern Territory was granted self-government in 1978. By s 69 of the Northern Territory (Self-Government) Act 1978 (Cth), the Commonwealth's interests in the Territory, including all interests in minerals, vested in the Northern Territory (apart from prescribed substances, such as uranium under the Atomic Energy Act 1953 (Cth)). Accordingly, the Commonwealth's interests in the claim area, including title to minerals, were vested in the Northern Territory.

143    In 1979 MIM provided a feasibility and environmental report to the Northern Territory relating to the HYC deposit, which concluded that a mine was not economically viable in the then prevailing economic conditions if undertaken as an open-cut operation.

144    However, in 1989 the Northern Territory and MIM entered into an agreement under which MIM would investigate again the viability of a mine. The recitals to the agreement indicate that the Northern Territory wished to investigate such feasibility and MIM wished to carry out the necessary investigations.

145    As a result, according to the Northern Territory's submission, a mine was found viable if conducted as a more limited, underground operation.

PART E – FROM PROJECT AGREEMENT TO OPEN-CUT MINE

The Project Agreement (1992)

146    The Project Agreement facilitating the development of the mine was entered into on 25 November 1992 between the Northern Territory and MIM and is expressly stated to be for the purpose of granting mineral leases for the Project; facilitating its development, construction and operation; transporting concentrate for sale, export or further processing; exploration for minerals; and for such other incidental purposes.

147    The Project is defined in the Project Agreement as follows:

'McArthur River Project' means the project to be developed by the Company in the Northern Territory of Australia relating to the mining of zinc-lead-silver from the mineral deposit known as the HYC deposit and the subsequent treatment, storage and transport of Ore and Concentrate within and between the Mineral Leases within the external boundaries of the northern portion of R0581 as at the date of this Agreement and any adjoining areas and the area of one Mineral Lease on the Bing Bong Pastoral Lease No. 686 and adjacent Territory waters. The project is for the purposes of:

(a)    mining of Ore;

(b)    processing, treatment and concentration of Ore;

(c)    storing Ore or Concentrate;

(d)    transporting Concentrate for sale, export or further processing;

(e)    exploration for minerals; and

(f)    for such other purposes in connection with the McArthur River Project as are necessarily incidental to paragraphs (a), (b), (c), (d) and (e).

148    Consistent with those purposes, cl 4 of the Project Agreement provided that MIM could apply for and be granted mineral leases; that the Minister for Mines and Energy was obliged to renew MIM mineral leases for 25 years; and that those leases were to be deemed to be granted in substitution of certain pre-existing mining tenements held by MIM.

149    The Project Agreement also provided that the Northern Territory would use its best endeavours to grant mining tenements, licences, easements and rights of way reasonably required for the Project (cl 5); the Northern Territory would construct and maintain the Road (cl 8); and, subject to an electricity supply contract, it would supply electricity to the Project or grant interests to enable MIM to supply its own electricity (cl 11). The Project Agreement also provided for the construction of the Bing Bong port (cl 10).

150    Particular terms of the Project Agreement are set out and addressed below.

Ratification of Project Agreement by the Project Act (1993)

151    The Project Agreement was ratified by the Project Act, which commenced on 5 January 1993. It is a bespoke Act, specific to the Project.

Grant of mineral leases MLNs 1121-1126 (1993)

152    On 5 January 1993, the Minister granted MLNs 1121-1125 to MIM (for mining) and MLN 1126 (for the port and mining). The grants were made pursuant to the Mining Act and the Project Act. At that time, s 60(1)(a) of the Mining Act relevantly provided for the grant of a mineral lease by the Minister, in their discretion, for the mining of minerals specified in the lease document, including their removal from the area and the treatment of tailings and other mining material. However, s 4A of the Project Act statutorily granted MLNs 1121-1126 to MIM from June 1993, and they were taken to have been effectively granted without requiring an application under the Mining Act.

153    The terms of the mineral leases are set out more fully below, when considering whether they constituted acquisitions of property.

154    The purposes for which the leases were granted largely mirror the purposes anticipated by s 60 of the Mining Act at the time. Relevantly, it was a term of the mineral leases that MIM provide proposed mining plans for approval by the Secretary of the Department.

155    MLNs 1121-1126 will expire in 2043 but the projected life of mine extends beyond this date. Regardless, MIM will require ongoing access to the land for rehabilitation works. It was common ground that this will require renewals of MLNs 1121-1126 in the future.

Aboriginal Areas Protection Authority sacred sites consultations

156    Separately, in 1992 MIM sought authority certificates relating to mine and port works from the Aboriginal Areas Protection Authority (AAPA) under the Sacred Sites Act. The AAPA conducted consultations to identify sacred sites that might be affected by works and whether conditions on works were required. A community meeting was held with Claim Group elders. Consultations were also held in 2003 and 2012, when further certificate applications were made. The relevance of the AAPA consultations is addressed in detail in Part L.

First amendment to the Project Act – validation and compensation provisions (1993)

157    The Project Act had not long been in force when it was amended by the Project Amendment Act 1993, which commenced on 30 June 1993. The amendments were introduced following the decision in Mabo and pending the introduction of the Native Title Act.

158    Relevantly, the Project Amendment Act 1993 validated the grant of the mineral leases (s 3). It introduced into the Project Act s 4A ('Regranting of mining interests') and s 4B ('Compensation'). Section 4A(1)-(2) provided that MLNs 1121-1126 were statutorily regranted for a period of 50 years, as if they had been granted on 5 January 1993. Section 4B provided an entitlement to compensation for any 'acquisition of property otherwise than on just terms' effected by that validation or regrant, provided claims were made within three years of the commencement of the Project Amendment Act 1993.

159    Certain members of the Claim Group (represented by the NLC) made a compensation claim under s 4B of the Project Act on 25 June 1996. The circumstances and any limitations of this claim by the '1996 notice' are important to this proceeding and are addressed in Part G below.

Reference to the Project in the Native Title Act

160    The Native Title Act generally commenced on 1 January 1994. Section 46 specifically refers to the Project Act and the Project Amendment Act 1993. Section 46 provides that the non-extinguishment principle applies relevantly to the grant of the mineral leases validated by s 3 of the Project Amendment Act 1993 and granted by s 4A of the Project Act.

The first authorisation to carry out underground mining (2002)

161    The terms of MLNs 1121-1126 required approval of mining plans by the Secretary of the Department of Mines and Energy. The terms of the mineral lease did not purport to restrict the method of mining. A mine plan approved in 1993, which had been submitted in accordance with the mineral leases and which referred to underground mining, was in evidence.

162    The terms of the Mining Management Act are also relevant (the 2001 Act repealed the Mine Management Act 1990 (NT), but has subsequently been repealed).

163    The Mining Management Act was described in its preamble at the time as 'an Act to provide for the authorisation of mining activities, the management of mining sites and the protection of the safety and health of persons and of the environment on mining sites, and for related purposes'. Its stated objects included to ensure the development of the Northern Territory's mineral resources in accordance with best practice safety, health and environmental standards and to protect the environment through (relevantly) audits, monitoring and reporting requirements.

164    The Mining Management Act relevantly required an operator to apply to the Minister for Mines and Energy for an authorisation to carry out on the site the mining activities specified in the application (s 35). It provided that an application for an authorisation had to be accompanied by a mining management plan (s 35(3)). The operator could carry out mining activities only if the Minister granted the authorisation to do so (s 35(1)).

165    In September 2002, MRM as operator lodged with the department an application for authorisation and a mining management plan for 'underground lead/zinc/silver mine, processing plant and Bing Bong Facility'.

166    A delegate of the Minister granted the authorisation to carry out those mining activities on 21 January 2003 (authorisation 0059-01). The authorisation was not in terms limited by reference to the nature, scope or method of mining activities.

The purported second authorisation to convert to open-cut mining (2006)

167    During 2003, MRM proposed to convert the underground mine to open-cut in order to exploit the resources and extend the life of the mine. Conversion was no small thing. It required (amongst other things) diversion of 5.5 km of the McArthur River and an amended authorisation under the Mining Management Act.

168    On 13 October 2006 the Minister purportedly granted to MRM a second authorisation. That process involved two administrative decisions under the Mining Management Act. First, it involved the Minister accepting an amended mining management plan that provided for the change to open-cut. Second, it involved the grant of an authorisation (authorisation 0059-02) but its terms were limited to requiring independent environmental audits and increasing the amount of rehabilitation security.

169    Although members of the Claim Group at the time accepted that a change in mining activities could be approved by an amended mining management plan, they successfully challenged the acceptance of the particular mining management plan as a manner by which the change to open-cut could be approved: Lansen v NT Minister for Mines and Energy [2007] NTSC 28. In short, the Northern Territory Supreme Court held that the first authorisation was to carry out only the mining activities specified in the application; that is, it was for a mine of a particular generic description, namely an 'underground lead/zinc/silver mine'. Accordingly, authorisation 0059-01 as sought and granted did not comprehend an open-cut mine. Acceptance of the amended mining management plan did not and could not operate in relation to authorisation 0059-01. The Court declared the ministerial action invalid.

Second amendment to the Project Act – to validate and authorise open-cut and amend compensation provision (2007)

170    After Lansen, Parliament passed the Project Amendment Act 2007 which validated the ministerial action the subject of Lansen. The Project Amendment Act 2007 amended the Project Act by inserting s 4AB. In substance, s 4AB provided that authorisations 0059-01 and 0059-02 were valid and effective and authorised mining activity of any kind, including the conversion of the mine from underground to open-cut. Section 4AB also provided that the amended mining management plan was valid and effective and was validly approved by the Minister on 13 October 2006.

171    The terms of s 4AB were as follows:

4AB    Ratification of certain instruments

(1)    Despite any law to the contrary, the Authorisation:

(a)    is valid and effective; and

(b)    authorises mining activity of any kind (including the conversion of the Mine from an underground into an open-cut mine).

(2)    Despite any law to the contrary, the Mining Management Plan:

(a)    is valid and effective; and

(b)    was validly approved by the Minister for Mines and Energy on 13 October 2006.

(3)    This section operates retrospectively and prospectively as follows:

(a)    subsection (1) operates on each of the constituent authorisations from the date on which it was purportedly made; and

(b)    subsection (2) operates from 13 October 2006.

(4)    In this section:

Authorisation means the constituent authorisations.

constituent authorisations means:

(a)    the authorisation under section 36 of the Mining Management Act 2001 dated 21 January 2003 and numbered 0059-01; and

(b)    the further authorisation under section 36 of the Mining Management Act 2001, varying that authorisation, dated 13 October 2006, and numbered 0059-02.

Mine means the mine that forms part of the McArthur River Project.

mining activity, see the Mining Management Act 2001.

Mining Management Plan means the mining management plan related to the Mine and purportedly approved by the Minister for Mines and Energy on 13 October 2006.

172    Due to the validation by the amending legislation, the Court of Appeal overturned the orders made by the primary judge: McArthur River Mining Pty Ltd v Lansen [2007] NTCA 5. It followed that MIM could proceed with the open-cut mine.

173    The Project Amendment Act 2007 also amended the compensation provision in s 4B of the Project Act by omitting the existing s 4B(1) and (2) and substituting different subparagraphs (both the original and amended versions of s 4B are extracted below in the section directed at statutory compensation provisions).

Other events

174    For completeness, I note two other matters relevant to the open-cut authorisations.

175    First, the proposal for the open-cut mine and diversion of the McArthur River was referred to the Commonwealth Minister for Environment and Heritage in February 2003. The proposal was assessed under the then Environmental Assessment Act 1982 (NT) and a report issued in August 2006. The Minister then received an updated mining management plan and a copy of the Northern Territory's authorisation for the open-cut mine. On 20 October 2006 the Minister granted an approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) for MRM to conduct the open-cut mine: Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [207]-[233]. The native title holders also succeeded in quashing the approval given under the Environment Protection and Biodiversity Conservation Act (Lansen v Minister for Environment and Heritage at [137], [172], [197]), but the Commonwealth Minister granted another approval in February 2009.

176    Second, as touched on, the AAPA conducted consultations to identify whether the works would impact on any sacred sites. In January 2004 AAPA issued certificates for those works, subject to conditions for sacred sites protection.

177    These matters, including the history of litigation, are relevant to the broader context of opposition by the Claim Group to the Project, a matter addressed in Part L in relation to cultural loss.

Phase 3 and life of mine

178    The open-cut mine was expanded in 2014. The expansion of the open-cut mine was referred to as 'Phase 3'. Phase 3 involved:

(a)    an approximate doubling of the open pit surface area and depth;

(b)    the addition of a new cell on the existing tailings storage facility to create additional capacity;

(c)    expansion of the existing NOEF located primarily on MLNs 1122 and 1124 and the construction of new overburden emplacement facilities (waste rock dumps) to the east and south of the open pit; and

(d)    construction of a new gas fired power station.

179    Phase 3 extended the life of the mine from 2027 to 2036 (subsequently extended to 2037), although the mine will be subject to rehabilitation under a life of mine closure plan which anticipates filling of the open pit by 2047. It is anticipated that the mine will be in 'active closure' until 2100. Further information about the scope and operations of the mine is addressed in Part L.

PART F - LIABILITY - STATUTORY ENTITLEMENT TO COMPENSATION

180    I turn now to a number of statutory provisions which are historically or currently relevant to liability on the part of the Northern Territory to compensate native title holders for the extinguishment or impairment of native title rights and interests.

Statutory entitlement to compensation

Mining Act

181    The Mining Act (now repealed) provided for compensation to be paid to an owner or occupier of private land comprised in a mining tenement over which a mineral lease was granted (the parties referred to the Mining Act as in force at 18 March 1993).

182    A mining tenement on 'private land', was defined to mean, relevantly, land alienated from the Crown for an estate of freehold: s 4(1).

183    By s 174B(1), the 'owner and occupier' of private land comprised in a mining tenement was entitled to certain compensation. Section 174B(1) provided that:

The owner and occupier of private land comprised in a mining tenement shall be paid, on account of their respective interests in the land, compensation for –

(a)    being deprived of the use of the surface or part of the surface of the land;

(b)    damage to the surface of the land through mining activities conducted thereon;

(c)    being deprived of the use of improvements on the land;

(d)    the severance of the land from other land owned or occupied by them; and

(e)    all other damage to the land or improvements on the land arising out of mining or other work under the mining tenement.

184    Section 174B(2) provided that:

In determining the amount payable under subsection (1), no account shall be taken of minerals known or supposed to be on or under the land.

185    Section 174C(1) provided that:

Subject to this section, a mining tenement shall not be granted in respect of land comprised of private land or partly of private land unless the Minister is satisfied that negotiations have been conducted between the applicant for the mining tenement and the owner and occupier of that land for the payment of compensation under section 174B and that payment has been made or an enforceable agreement for making the payment has been entered into.

186    Section 174C(2) provided that if the amount of compensation payable under s 174B had not been agreed:

… the Minister shall, either at the request of the owner or occupier or the applicant, direct that the matter be referred to a warden, who shall determine what, in his opinion, is the appropriate compensation to be paid, and the amount so determined shall be payable accordingly on the grant of the mining tenement.

187    Section 174C(3) dealt with cases where the applicant was unable to locate the owner or occupier prior to the grant, in which event the Minister could grant the tenement subject to conditions they considered fit for the payment of compensation if the owner or occupier was located after the grant.

188    Section 174D(1) dealt with compensation relating to adjoining land and provided that:

Where land adjoining or in the vicinity of a mining tenement area comprised of private land is injured or depreciated in value by or as a result of mining or work carried out on the tenement area, the owner and occupier of that land shall be entitled to be paid compensation by the holder of the mining tenement for their respective loss or damage thereby sustained.

189    If the amount of compensation payable under s 174D(1) had not been agreed, either party could refer the question to a warden for determination: s 174D(2).

190    Without more, according to the Northern Territory, this compensation provision was directed at the time to interests in private land and provided no correlative right to compensation for extinguishment or impairment of native title interests.

Racial Discrimination Act

191    Regardless, the Racial Discrimination Act supplied a source of correlative rights to compensation.

192    The Racial Discrimination Act commenced on 11 June 1975. Section 10(1) provides for the right to equality before the law. It provides that:

If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

193    By force of this provision, although native title rights and interest have different characteristics from common law land title, just as common law land title holders could not be deprived of their interests without payment of just compensation, native title holders were not to be deprived of their rights and interests without the payment of just compensation: Griffiths HC at [75], citing Western Australia v The Commonwealth (1995) 183 CLR 373 and Ward HC.

194    Native title holders could receive parity of treatment in their assessment of compensation by reference to conventional tools of economic valuation, adapted as necessary to reflect the unique nature of their interests, including adaptation for circumstances where the bundle of native title rights and interests were something less than full exclusive native title: Griffiths HC at [76].

195    The recognition that the Racial Discrimination Act required parity of treatment in relation to native title rights and interests, including in the context of rights under the Mining Act, provided the backdrop to the Project Act.

Project Act

196    The Project Act created a framework by which the Project Agreement could be given effect notwithstanding anything to the contrary in any Act in force in the Northern Territory, including the Mining Act (s 4(3) of the Project Act).

197    Section 4(4) of the Project Act provided:

Where a provision of the [Project] Agreement provides for the modification of an Act or law in force in the Territory, the Act or law shall, for the purposes of the Agreement, operate and take effect as provided for in the Agreement as if the Act or law had been so modified.

Project Amendment Act 1993

198    The Project Amendment Act 1993 validated the grants of MLNs 1121-1126 and introduced a specific regime for compensation relating to the Project.

199    As to validation, s 3 of the Project Amendment Act 1993 stated:

The Principal Act is, and all actions taken or purported to have been taken, or things done or purported to have been done, under, in pursuance of or in accordance with the Principal Act before the commencement of this Act are, hereby validated.

200    As noted, the amending Act also inserted s 4A and s 4B into the Project Act.

201    Section 4A of the Project Act relevantly re-granted to MIM MLNs 1121-1126 for a period of 50 years. Section 4A(4) of the Project Act provided:

For the avoidance of doubt and notwithstanding any other law in force in the Territory, a mineral lease … is validly and effectively granted by subsection (1) notwithstanding that an application has not been made nor any action that would be required before an equivalent lease … could be granted under the Mining Act (including the giving of any notices and a hearing by and recommendation of the Warden) has not been taken.

202    Section 4B established the compensation regime:

4B.    COMPENSATION

(1)    To the extent that a grant effected by section 4A, a validation effected by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993 or anything done or action taken under or in pursuance of this Act before or after the commencement of this section, results or resulted in the acquisition of property otherwise than on just terms, the Territory is liable to pay or provide such compensation as is agreed on between the Territory and the person from whom the property was acquired or, if agreement cannot be reached, compensation on just terms determined in an action by the person against the Territory in the Supreme Court.

(2)    A person is not entitled to compensation under this section unless, within 3 years after the commencement of this section, the person lodges with the Administrator a claim in writing for compensation in respect of the property acquired, specifying the land in relation to which the claim is made, the nature of the right claimed in respect of the property, the amount of compensation claimed, and the person's address in the Territory for service.

(3)    If, at any time after a person has lodged a claim under this section, the Administrator serves on the person a notice in writing that the Administrator is satisfied, on reasonable grounds, that no agreement, or no further agreement, can be reached in respect of the claim, an action by the person against the Territory under this section for compensation shall not be instituted later than 6 months after service of the notice.

(4)    Where an action has been instituted under this section in the Supreme Court and, on application by the Territory for an order under this subsection, the Court is satisfied that the person claiming compensation is not diligently prosecuting the action, the Court may dismiss the action for want of prosecution.

(5)    A notice by the Administrator for the purposes of this section may be served by post on the claimant at the claimant's address in the Territory for service set out in the claim lodged with the Administrator.

(6)    In this section:

'acquisition of property' includes –

(a)    the extinguishment or diminution of an interest in or right in relation to land; and

(b)    any effect on such an interest or right, being an effect of a kind referred to in section 174B or 174D of the Mining Act in relation to private land;

'compensation' may include –

(a)    facilities or services agreed on between the claimant and the Territory provided or to be provided to the claimant or as the claimant directs; and

(b)    property in substitution for property acquired.

203    Therefore, by the amendments introduced by the Project Amendment Act 1993, the grants of the mineral leases under the Project Act were validated, regardless of whether the Mining Act extended to providing for compensation in relation to native title interests and regardless of whether there had been non-compliance on the part of the Northern Territory with any requirements of the Mining Act in that regard, including as to negotiation. They also had the effect that the Project Act provided a statutory entitlement to compensation for the effects of those mineral leases and their validation.

Project Amendment Act 2007

204    In 2007, and in addition to ratifying the open-cut authorisations, s 4 of the Project Amendment Act 2007 amended s 4B of the Project Act so that it read:

4B    Compensation

(1)    To the extent that a relevant legislative or administrative act results in the acquisition of property on terms that would not (apart from this section) be just, the Territory is liable to pay compensation sufficient to remedy the injustice.

(1A)    The compensation is to be determined by agreement between the person from whom the property was acquired and the Territory or, in default of agreement, by the Supreme Court.

(2)    A person is not entitled to compensation under this section unless, within 3 years after the acquisition, the person lodges a claim with the Administrator setting out:

(a)    the person's name and an address for service in the Territory; and

(b)    the nature of the property acquired; and

(c)    the amount of compensation claimed.

(3)    If, at any time after a person has lodged a claim under this section, the Administrator serves on the person a notice in writing that the Administrator is satisfied, on reasonable grounds, that no agreement, or no further agreement, can be reached in respect of the claim, an action by the person against the Territory under this section for compensation shall not be instituted later than 6 months after service of the notice.

(4)    Where an action has been instituted under this section in the Supreme Court and, on application by the Territory for an order under this subsection, the Court is satisfied that the person claiming compensation is not diligently prosecuting the action, the Court may dismiss the action for want of prosecution.

(5)    A notice by the Administrator for the purposes of this section may be served by post on the claimant at the claimant's address in the Territory for service set out in the claim lodged with the Administrator.

(6)    In this section:

acquisition of property includes:

(a)    the extinguishment or diminution of an interest in or right in relation to land; and

(b)    any effect on such an interest or right, being an effect of a kind referred to in section 174B or 174D of the Mining Act in relation to private land.

compensation may include:

(a)    facilities or services agreed on between the claimant and the Territory provided or to be provided to the claimant or as the claimant directs; and

(b)    property in substitution for property acquired.

relevant legislative or administrative act means:

(a)    a grant effected by section 4A; or

(b)    a validation effected by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993 [Project Amendment Act 1993]; or

(c)    the enactment of section 4AB; or

(d)    anything done under this Act.

Native Title Act – specific reference to MLNs 1121-1126

205    As noted, the Native Title Act generally commenced on 1 January 1994 and by s 46 expressly refers to the Project.

206    Section 46 provides that the non-extinguishment principle applies to the grant and validation of MLNs 1121-1126 under the Project Act.

207    The non-extinguishment principle is described in s 238 of the Native Title Act. Section 238(2) relevantly provides that an act that 'affects' native title in relation to land or waters does not extinguish native title wholly or partly.

208    An act is said to 'affect' native title if it extinguishes the rights and interests or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise: s 227 Native Title Act.

209    Section 238 provides for scenarios where rights and interests no longer have effect (where an act is wholly inconsistent), continue to have effect in part (where an act is partly inconsistent) or may again have effect (where an act is partially or completely removed).

210    Relevantly in this case, the parties agreed that MLNs 1121-1126 did not extinguish the native title rights and interests. The life of the mine is limited and there will be a time when the mineral leases come to an end, although when that might be and whether there was practical extinguishment in some cases is addressed further below when considering compensation.

Native Title Act – compensation for pre-1996 non-pastoral use permits

211    As noted, there is only one claim that invokes the compensation regime under Part 2 Division 5 of the Native Title Act ('Determination of compensation for acts affecting native title etc').

212    This is the alternative claim in relation to the pre-1996 non-pastoral use permits for dredge spoil ponds by the port. The Northern Territory denies liability under the Project Act but admits that these permits are compensable intermediate acts within the meaning of s 22G of the Native Title Act to which the just terms entitlement in s 51(1) would apply.

213    The Claim Group initially also sought compensation under the Native Title Act in relation to post-1996 non-pastoral use permits, but this claim was not pursued.

214    Section 51(1) of the Native Title Act relevantly provides that the entitlement to compensation under Division 2A of the Native Title Act is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

215    Section 51A(1) provides that:

The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

216    As it happens, it has not been necessary to consider liability under the Native Title Act. Regardless, I have included these provisions because they are important for the purpose of considering the application of the compensation approach in Griffiths HC, once I turn to the question of economic loss.

The three liability issues that arise under the compensation provisions

217    By the end of the closing submissions, and after the abandonment and narrowing of a number of issues, the dispute as to whether the Northern Territory is liable for the compensable acts under the compensation legislation (leaving aside questions of quantum) distilled to three matters.

218    The first matter is notice. The Northern Territory accepts that notice of a compensation claim as required by the original s 4B of the Project Act was given by the applicant in relation to MLNs 1121-1126. It takes no point as to absence of notification of a claim in relation to the Road, Pipeline Licence and pre-1996 non-pastoral leases, presumably because such acts were at least anticipated by the scope of the Project Agreement and incidental to the 1996 notice. However, the Northern Territory disputes that notice of a claim was given in relation to the enactment of s 4AB in 2007 (under either the original s 4B or amended s 4B), the MLN 582 renewals or the post-1996 non-pastoral use permits. The question is whether the 1996 notice is to be understood as claiming compensation for those post-1996 acts, whether by way of its interpretation, or, in relation only to the enactment of s 4AB, by estoppel.

219    The second matter relates to the non-pastoral use permits. Accepting that there was notice of a claim as required for the pre-1996 non-pastoral use permits, there remains an issue as to whether any of the non-pastoral use permits constituted a relevant administrative act for the purpose of s 4B(1) of the Project Act. The question as ultimately framed by the Claim Group, having regard to s 4B(1) of the Project Act as in force at that time, is whether those acts were properly defined as 'anything done or action taken under or in pursuance of [the Project Act] before or after the commencement of s 4B'.

220    The third matter relates to each of the s 4AB enactment, the MLN 582 renewals, the non-pastoral use permits and the Pipeline Licence. The question is whether they constitute an 'acquisition of property' within the meaning of s 4B(6) of the Project Act.

221    These matters are determined in Parts G, H and I respectively.

222    The matters also give rise to separate questions of statutory interpretation. For example, questions arise as to the meaning of the notice provisions in s 4B(2) of the Project Act and the construction of 'anything done' under an Act in considering the non-pastoral use permits and the definition of a relevant legislative or administrative act as defined in s 4B(6). The latter question was the source of more detailed submissions on statutory interpretation, and for that reason I have collected the applicable principles in Part H (relevantly at [374]-[378] below).

PART G – NOTICE OF CLAIMS

223    I deal with matters relevant to whether notice of a claim was given, or is taken to have been given, in the following order:

(a)    context – claims or agreements relating to compensation for the Project made prior to 1996;

(b)    the 1996 notice in full;

(c)    how the 1996 notice is to be interpreted; and

(d)    the events and communications after the 1996 notice relied on in relation to the estoppel claim, and its determination.

Context – prior land rights claims and 'compensation' agreements

224    The Claim Group emphasised that they had a long history of land rights claims and requests or recommendations for compensation in relation to the area surrounding Borroloola, between the mine and the port: they had sought recognition and had opposed the Project long before 1996.

225    For example, the Claim Group referred to a 3 March 1978 report by the Aboriginal Land Commissioner (Justice Toohey) presented to the Minister for Aboriginal Affairs which addressed a Borroloola Land Claim, concerning the area in Borroloola between the mine and the port. Justice Toohey made a number of recommendations, including the potential acquisition and transfer of Bing Bong Station to an Aboriginal Trust for use by the traditional owners.

226    The Claim Group also referred to discussions and negotiations in 1979 and 1980 between groups of Aboriginal people, the NLC, MIM, the Northern Territory and the Commonwealth as the respective stakeholders sought to negotiate an agreement that would have regard to Justice Toohey's recommendations and the areas of land not only around Borroloola, but the islands off the coast.

227    This and other history of claims in the area are documented in a 1996 report published by the then Aboriginal Land Commissioner Justice Gray in relation to a second Borroloola Land Claim, which extended to the Sir Edward Pellew Group of Islands. The Claim Group noted that Justice Gray referred to those islands being proclaimed as towns, apparently to prevent a land claim at the time, and without any attempt to procure the consent of the Aboriginal people of the area.

228    The Claim Group submitted that such reports recorded the Northern Territory's long-term dismissal of the efforts by the native title holders to oppose or raise concerns about the Project.

229    Against such backdrop, the Claim Group's position is that the Northern Territory was well aware in 1996 of long-standing opposition to the Project by the native title holders and their attempts to reach some form of agreement that included compensation.

230    On the other hand, the Northern Territory referred to previous compensation agreements entered into with the native title holders. It contends that such agreements must be taken into account. For example, it referred to the 1994 Agreement, which was made in March 1994, and finalised negotiations between the Commonwealth and the Borroloola Aboriginal community in relation to the mine to port land corridor. It provided for the transfer by the Commonwealth of Bauhinia Downs station, its stock, plant and equipment (valued at some $1.7 million) to the Gurdanji-Bingbinga Aboriginal Corporation and a commitment of funding from the Minister for Employment, Education and Training for the implementation of the 'Borroloola Employment Enterprise Development Plan', instituting projects designed to increase employment opportunities for the local Aboriginal people.

231    The 1994 Agreement was in evidence. It provided that the arrangements were accepted as full compensation in respect of any liability of the Commonwealth to members of the Aboriginal groups for any effect on their native title because of any act or omission of the Commonwealth relating to the grant or validation of the mineral leases under the Project Act by the Northern Territory. I will return in the context of the cultural loss claim to how and whether benefits provided by the Commonwealth under the 1994 Agreement are to be accounted for in this compensation assessment.

232    But for the present purposes of the question of notice, it should be accepted at a general level that the Northern Territory was well aware in 1996 of long-standing opposition to the Project by the native title holders and their attempts to reach some form of agreement that included compensation.

The 1996 notice

233    The NLC, on behalf of 13 native title holders, lodged the 1996 notice, dated 25 June 1996, expressly making a compensation claim under s 4B of the Project Act. As the date reflects, the claim was made under s 4B as inserted by the Project Amendment Act 1993. Where it assists to understand the context, I will refer to this version of s 4B as the original s 4B and the version of s 4B as substituted by the Project Amendment Act 2007 as the amended s 4B.

234    The NLC's covering letter enclosing the 1996 notice included the following:

My clients now claim compensation in respect of any of their native title rights or interests which may have been extinguished or impaired as a result of the validation effected by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993 or anything done or action taken under or in pursuance of that Act. My clients state that any such extinguishment or impairment amounted to an acquisition of property otherwise that on just terms.

235    The letter attached 13 separate signed notices, but their content is consistent. The 1996 notice provided (emphasis added):

1.    I … hereby claim compensation pursuant to Section 4B of the McArthur River Project Ratification Act 1992 (as amended) in respect of any extinguishment or impairment of native title rights or interests:

(a)    which may have been caused by or resulted from the execution of the McArthur River Project Agreement;

(b)    which may have been caused by or resulted from the ratification of the McArthur River Project Agreement by the McArthur River Project Agreement Ratification Act 1992, or by its subsequent validation and amendment by the McArthur River Project Agreement Ratification Amendment Act 1993;

(c)    which may have been caused by or resulted from the grant of any interests in land or waters, including any mineral leases, exploration licences, or permits, pursuant to the McArthur River Project Ratification Act 1992 (as amended);

(d)    which may have been caused by or resulted from any other action taken by the Northern Territory, Mount Isa Mines Ltd (ACN 009 661 447) or any other person pursuant to the McArthur River Project Agreement or the McArthur River Project Ratification Act 1992 (as amended); or

(e)    which may have been caused by [or] resulted from a validation effected by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993 or anything done in pursuance of that Act.

2.    This claim is made on my own behalf and on behalf of all persons who hold, or did hold, native title rights or interests which are referred to in clause 1.

3.    The native title rights or interests which may have been extinguished or impaired by the matters referred to in clause 1 are asserted to be the same as those identified in Mabo v Qld (No. 2) 107 ALR 1 in respect of the Murray Islands. That is, prior to the implementation of any matters referred to in clause 1, I and other native title holders were (pursuant to our native title) 'entitled as against the whole world to possession, occupation, use and enjoyment' of the land and waters which may now be subject to the matters referred to in clause l (per Brennan J, p. 56).

4.    The amount of compensation claimed raises complex legal issues and is therefore difficult to specify, but it is asserted to be an amount sufficient to compensate on just terms any extinguishment or impairment of native title which may have resulted from the matters referred to in clause 1.

5.    This claim relates to all those native title rights or interests held in all that land in any way affected by the McArthur River Project (as that term is defined in the [Project Act] (as amended)) and, without limitation, includes all that land included on the date of grant of [EL8070 and MLN 1121-MLN 1126].

Analysis – requisite notice

Construction question

236    The Northern Territory takes no issue with the form of the 1996 notice or its compliance with the original s 4B, other than submitting that the 1996 notice only operates in relation to acts done under the Project Act prior to 25 June 1996. It accepts that the 1996 notice conforms with the requirements and makes a claim for compensation in relation to the grants of MLNs 1121-1126.

237    It also accepts that the 1996 notice covers the grant of the pre-1996 non-pastoral use permits, the Road and the Pipeline Licence. Although these later acts were not referred to in it, construction of the Road was referred to in the Project Agreement as ratified by the Project Act (cl 8), and so anticipated by cl 1 of the 1996 notice, and the other acts occurred prior to 1996 and relate to the Project.

238    The Northern Territory proposed a strict interpretation of the original s 4B of the Project Act, such that any claim for compensation was limited to acts the subject of a notice under s 4B(2) and that occurred either prior to the enactment of the amending Act on 30 June 1993, or after that date but within the subsequent three-year period.

239    The Claim Group propounded a broader approach that would result in the 1996 notice preserving a claim for compensation arising out of all compensable acts upon which they rely, including those that occurred after 25 June 1996.

240    The drafting of the original s 4B is not without difficulty. The amending Act commenced prior to the Native Title Act and well before the conversion from an underground to open-cut mine. The Claim Group seeks to rely on the 1996 notice in circumstances which did not pertain at the time it was in fact drafted.

241    Read strictly, the specific nature of the notice prescribed by s 4B(2) assumes that it is given at a time when there is certainty about the 'property acquired', the 'nature of the right claimed' and the amount of compensation claimed. It assumes knowledge of such matters within three years of commencement of the amending Act on 30 June 1993 in order to bring such claim. For context, it also assumes knowledge of the 'nature of the right claimed' at a time prior to the commencement of the Native Title Act and its regime for recognition of native title rights. It does not expressly seek recitation of the conduct or acts relied upon but requires a statement of the 'property acquired'. There is no doubt that drafting a notice that meets those requirements in the context of an ongoing project may create practical difficulties for claimants.

242    Further, the wording of s 4B(1) assumes the relevant conduct resulting in an acquisition of property may occur in the future. It refers to conduct by way of 'anything done or any action taken under or in pursuance of the [Project Act]', whether 'before or after' the commencement of the amending Act. These words are both inclusive and anticipate future conduct.

243    The nature of an acquisition of property may be such that it is not a single event that occurs at a finite time. The definition of 'acquisition of property' in s 4B(6) encompasses rather than excludes this proposition. It extends to the diminution of an interest in or right in relation to land; and any effect on such an interest or right, including being deprived of the use of land or damage to land by mining activities (by cross reference to s 174B of the Mining Act). Such a diminution may well be ongoing and its effects on matters such as cultural loss not initially observed.

244    According to the Claim Group, these textual matters favour a broad approach to the notice requirement, further endorsed, they say, by the absence of a requirement to refer to any particular act in the notice that effected the acquisition. The Claim Group contended that the absence of any such requirement supported the view that it was sufficient for a notice under s 4B(2) to specify the property acquired, so that any future act that might also affect that same property would be captured by the claim.

245    According to the Claim Group, if all claims were required to be notified by 30 June 1996, then no claim could be brought for action taken under or in pursuance of the Project Act after 30 June 1996, a result which would be capricious.

246    Despite the attraction of the Claim Group's submissions on this difficult issue, the text of the relevant provisions does not support their argument.

247    I accept that the three-year period prescribed by s 4B(2) is on its face strict and somewhat impractical, having regard to the information sought. The difficulties in meeting its requirements are apparent from the NLC's attempt to do so in the 1996 notice. For example, the Claim Group does not state the amount of compensation claimed with any precision, despite the terms of s 4B(2).

248    However, for the following reasons, which are largely consistent with the submissions of the Northern Territory, I consider the regime prescribed by the original s 4B purported to address only claims for compensation in relation to acquisitions of property that occurred prior to 30 June 1996.

249    First, the compensation regime is directed solely at the Project. It is project-specific legislation. It is therefore appropriate to have regard to the broader context of the Project. It was expected at the time that the mineral leases for the Project had been issued and were to be validated. According to the MIM Mine Plan in evidence (dated 2 July 1993), the milestones for the Project would see the development and construction of the mine completed by July 1995 with production underway by August 1995. It was expected that the dredging for the shipping channel at Bing Bong would have been completed and that the Road upgrade to Bing Bong would have been undertaken by 1995. Viewed against this timeline, the three-year period for lodging claims has some rationale and is not capricious.

250    Second, and turning to the text, the entitlement in s 4B(1) is drafted having regard to the date of commencement of the provision (30 June 1993). It operates on acts in the past and acts into the future relative to that date. That language may be contrasted with the use of the past tense in s 4B(2), limiting compensation claims to 'property acquired' by the 30 June 1996 deadline. The use of the different tenses in s 4B(1) and s 4B(2) is explicable and coherent. The text supports an interpretation that any claim made under s 4B(2) must relate to an acquisition of property within the meaning of s 4B(1) that has occurred by the time of the claim.

251    Third, the requirements of the notice are consistent with the acquisition having already occurred. Relevantly, the notice had to specify (a) the land in relation to which the claim is made, (b) the nature of the right claimed in relation to the property, and (c) the amount of compensation claimed. If the Claim Group's construction were correct, a notice could not necessarily specify those matters. The land the subject of or affected by an acquisition might change as the Project expanded, as could the nature of the property affected. Further, it would be impossible to state the amount of compensation claimed before the existence of a relevant act is known. Those matters are underscored by the requirement that they be 'specified', which connotes particularity.

252    Fourth, the regime provided for a three-year period for claims to be made, followed by a process whereby the Administrator could issue a notice that introduced a six-month limit on the time period in which proceedings seeking compensation were to be commenced. This process contemplated that the acts in respect of which compensation was payable would have been identified so that proceedings could be commenced within a relatively short time frame, a course consistent with the narrower interpretation of s 4B(2).

253    Fifth, the Claim Group's contention that the narrow approach would lead to a capricious outcome by barring claims after June 1996 must be viewed in context. The three-year time limit under the original s 4B cannot be viewed in a vacuum. The potential for a claim for compensation to arise based on a post-June 1996 acquisition of property appears to have been anticipated and addressed under the Project Amendment Act 2007. The most significant post-June 1996 action relied upon by the Claim Group is the enactment of s 4AB by that Act. The amendment to s 4B introduced by the Project Amendment Act 2007 expressly provided for compensation, and provided that a claim could be brought within three years of the date of the acquisition.

254    On the Claim Group's construction of the original s 4B, there would have been no need to introduce a three-year claim period under the Project Amendment Act 2007. It would have been unnecessary because on their case a claim had already been made in 1996 which extended to the validation effected by the enactment of s 4AB. The inclusion of the three-year time period in the Project Amendment Act 2007 supports the narrow view of the original s 4B for which the Northern Territory advocates.

255    Sixth, it is important to recall that a construction of the original s 4B, which limits the relevant acts to acquisitions of property prior to 30 June 1996 and which have been the subject of a claim, does not thereby limit the regard by the Court to events after that date in assessing compensation for those acts. The events that transpired on the claim area after 30 June 1996 remain highly relevant and are addressed in the context of the cultural loss compensation assessment.

256    Having found the regime prescribed by the original s 4B purported to address only claims for compensation in relation to acquisitions of property that occurred prior to 30 June 1996, it is necessary to consider the scope of the claims made by the 1996 notice.

The interpretation of the 1996 notice

257    The 1996 notice repeatedly refers to extinguishment or impairment of native title rights or interests that may have been 'caused by or resulted from' the various conduct listed in cl 1 of the notice. That conduct is described broadly and includes the ratification of the Project Agreement, the validation of the grant of the mineral leases and 'any other action' taken pursuant to the Project Act as amended. The phrase 'caused by or resulted from' utilises the past tense, consistent with the text of s 4B(2).

258    However, and in contrast, cl 5 of the 1996 notice expresses the compensation claim broadly as relating to all native title rights or interests held in all the land 'in any way affected by the McArthur River Project' including all the land the subject of (relevantly) MLNs 1121-1126. 'McArthur River Project', by reference to the Project Agreement and Project Act, is defined broadly to include 'mining of ore' and encompasses future conduct. The definition does not restrict such mining to underground or open-cut mining. Nor is it time limited. It refers to the project 'to be developed' and speaks in the language of ongoing and future events, drafting consistent with the fact that the Project was by its nature a long-term operation.

259    For convenience, the definition is reproduced:

'McArthur River Project' means the project to be developed by the Company in the Northern Territory of Australia relating to the mining of zinc-lead-silver from the mineral deposit known as the H. Y. C. deposit and the subsequent treatment, storage and transport of Ore and Concentrate within and between the Mineral Leases within the external boundaries of the northern portion of R0581 as at the date of this Agreement and any adjoining areas and the area of one Mineral Lease on the Bing Bong Pastoral Lease No. 686 and adjacent Territory waters. The project is for the purposes of:

(a)    mining of Ore;

(b)    processing, treatment and concentration of Ore;

(c)    storing Ore or Concentrate;

(d)    transporting Concentrate for sale, export or further processing;

(e)    exploration for minerals; and

(f)    for such other purposes in connection with the McArthur River Project as are necessarily incidental to paragraphs (a), (b), (c), (d) and (e).

260    This context, according to the Claim Group, makes it clear that read as a whole, cl 5 of the 1996 notice is to be understood as encompassing all actions with an extinguishing or impairing effect on native title rights arising from the Project, whether past or future, within the original s 4B's definition of an acquisition of property, including over the mine site and port areas. They submit that the fact that notices were lodged five days before the cut-off date was simply due to the limitation on claims being submitted after that date.

261    Whilst the submission has some attraction, I do not accept it. Although both the terms of cl 5 of the notice as to the nature of rights and the definition of 'McArthur River Project' are expressed broadly, the past tense utilised in the operative parts of the notice (consistent with the covering letter) persuades me that the notice cannot properly be read as purporting to satisfy any statutory requirement for notice of a claim for compensation in relation to compensable acts occurring after 30 June 1996.

Conclusion – scope and effect of 1996 notice

262    For the reasons given, the regime prescribed by s 4B of the Project Act purported to address only claims for compensation in relation to acquisitions of property that occurred prior to 30 June 1996. The 1996 notice was given having regard to the terms of s 4B at the time and cannot be understood as constituting notice in relation to compensable acts that occurred after 30 June 1996.

263    Therefore, the Claim Group gave notice of a claim for compensation in relation to MLNs 1121-1126, the Road, the Pipeline Licence and the pre-1996 non-pastoral use permits.

264    Notice of a claim was not given in relation to post-30 June 1996 compensable acts. Those acts are, relevantly, the enactment of s 4AB (2007), the MLN 582 renewals (25 July 2000 and 4 February 2020) and the post-1996 non-pastoral use permits (granted over the period 10 April 1997 to 26 February 2010). No other notice of claim was issued under the amended s 4B of the Project Act purporting to make a claim for any acts within the stipulated three-year period or otherwise.

265    However, the Claim Group pursues their estoppel argument, which is relied upon only in relation to the enactment of s 4AB (reply [4]).

266    I find below that the enactment of s 4AB of the Project Act is not a compensable act because it was not an acquisition of property within the meaning of s 4B(6). Therefore, it is not strictly necessary to determine the estoppel argument. However, in case that finding is wrong, I will address it, noting the obligations on a primary judge as summarised by Emerton JA in Braham v ACN 101 482 580 Pty Ltd [2018] VSC 575 at [268]-[272].

Estoppel

The estoppel plea and principles

267    As discussed, the Northern Territory pleads that no claim was made for the purpose of s 4B of the Project Act after the 1996 notice. More particularly as to the open-cut conversion, it pleads that if the enactment of s 4AB by way of the Project Amendment Act 2007 resulted in an acquisition of property otherwise than on just terms (which is denied), no claim was made to the Administrator concerning those acts for the purpose of s 4B(2) of the Project Act and so no entitlement to compensation under s 4B of that Act arises.

268    The Claim Group pleads in reply that to the extent the Northern Territory pleads the absence of a claim lodged with the Administrator under or within the relevant three-year time period referred to in s 4B(2) of the Project Act as a defence to the claims for compensation for the enactment of s 4AB of the Project Act on 4 May 2007, the Northern Territory is estopped from relying on such a defence.

269    The Claim Group's estoppel case (having regard to the pleaded reply and submissions) is that:

(a)    after the members of the Claim Group lodged notice of their claims by the 1996 notice, the NLC on their behalf sought to reach agreement with the Northern Territory on compensation including in relation to the conversion of the mine from underground to open-cut;

(b)    the Northern Territory stated (prior to 2017) that its position on compensation was that it first required the Claim Group to obtain a determination of native title;

(c)    the Claim Group did so, and the Determination was made in 2015;

(d)    in 2017, after the Determination, the Northern Territory said it was prepared to engage in discussions to explore settlement options;

(e)    in those circumstances, the Northern Territory represented, alternatively the Claim Group assumed, that provided there was first a determination then the Northern Territory would negotiate with them about compensation including as to the mine conversion and it was not necessary to lodge any further notice or claim;

(f)    the Northern Territory induced or encouraged the Claim Group to assume the truth of the representation, or alternatively, adopt the assumption, by omitting to inform them (through the NLC) that if they did not lodge a further claim for compensation with respect to the enactment of s 4AB that validated the conversion of the mine, any entitlement to compensation under s 4B(1) of the Project Act would be disputed on that ground;

(g)    in reliance on the representation, alternatively, on the assumption, the Claim Group abstained from lodging any further claim for compensation with respect to the conversion of the mine before securing recognition of their native title rights, and instead pursued the proceedings that culminated in the Determination;

(h)    the Claim Group will suffer detriment if the representation or assumption as to the ability to seek compensation for the mine conversion is not fulfilled because the Northern Territory now seeks to rely on the absence of a claim within the three-year period under s 4B(2) of the Project Act as a defence to the claim for compensation;

(i)    in the circumstances it would be unfair or unjust for the Northern Territory to resile from the position that it remained open to the Claim Group to pursue compensation by taking advantage of the absence of a claim being lodged with the Administrator within the relevant time period; and

(j)    the Northern Territory is therefore estopped from resiling from that position.

270    There was a suggestion in the pleading of an estoppel by convention claim (that is, that the parties were bound by a convention of treating the 1996 notice as extending to a claim based on the validation of open-cut mining). However, senior counsel for the Claim Group confirmed during submissions that the Claim Group rely on an equitable estoppel of the nature identified in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387.

271    In Waltons Stores Brennan J (at 428) identified the six elements of an equitable estoppel:

In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

272    As explained by the majority in Kramer v Stone [2024] HCA 48 (Gageler CJ, Gordon, Edelman and Beech-Jones JJ), those requirements were formulated at a level of generality sufficient to include an equitable estoppel which arises by reason of encouragement, as well as by reason of acquiescence: at [36].

273    In this case, having regard to the nature and content of ongoing communications between the Northern Territory and the Claim Group, I consider the Northern Territory's conduct is readily described as encouragement.

274    The majority in Kramer at [37]-[40] developed the six Brennan J elements in relation to equitable estoppel by encouragement by way of four observations.

275    First, the majority noted that as with all representations, there must be a 'clear and unequivocal' promise.

276    Second, a reasonable person in the promisor's position must have expected or intended (or the promisor actually expected or intended) the promisee would rely on the promise by some action or omission (the 'encouragement').

277    Third, the promisee must have relied upon the promise and acted in the general manner that would have been expected – it must usually be shown that the reliance on the representation 'made a difference… to the course of action or inaction' (citing Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 at [91]).

278    Fourth, the promisee must suffer detriment in the sense that they will be in a worse position as a consequence of reliance upon the promise than if it had not been made. The focus is on the conduct of the promisee in acting upon the expectation.

279    Further as to detriment, the majority in Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445 (Kiefel CJ, Edelman, Steward and Gleeson JJ) confirmed that the detriment with which estoppel is concerned is not limited to loss that can be measured in monetary terms, but that a promisee will need to establish detriment such as an adverse consequence, a source of prejudice or the loss of something of value if their position was altered by the reversal of the assumption: at [80]-[81].

280    Detriment might be established by showing a lost opportunity of real and substantial value even if the promisee cannot prove that the opportunity would have realised benefit: majority at [81], and Gageler J at [166], [168]. The plurality in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 at [88] (Hayne, Crennan, Kiefel, Bell and Keane JJ) similarly confirmed the broad nature of the enquiry as to detriment.

281    Given that it has been established that the Northern Territory's conduct constituted encouragement, it is unnecessary to consider the Claim Group's submission that the conduct also comprised estoppel by acquiescence. I further note that, as the Northern Territory submitted, the Claim Group did not plead estoppel by acquiescence.

The reliance issue

282    In this case, the content of the representation or promise as pleaded was to the effect that the Northern Territory was willing to negotiate compensation once the pre-condition of a determination of native title was made, and that no further formal notice of a claim was required to be lodged.

283    The Claim Group submitted that the conduct was reasonably capable of giving rise to the representation: Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 at [52]-[53]. However, the Northern Territory submitted that the Claim Group had not made out any issue of reliance so as to ground an estoppel.

284    The reliance question therefore became highly relevant: that is, despite any other contributing factors, would the Claim Group have adopted a different course by making a claim under s 4B after the enactment of s 4AB of the Project Act, rather than omitting to do so, had the relevant representation not been made or assumption induced? The parties disagreed as to whether such reliance on the representation or inducement could be inferred.

285    A number of authorities assist in this regard. The High Court confirmed in Sidhu that in the absence of express evidence of reliance, reliance can be established by inference, provided there is evidence of objective circumstances from which an inference of reliance can be drawn: at [58], [62]-[64] (French CJ, Kiefel, Bell and Keane JJ), [95] (Gageler J). The Court must attend closely to all the evidence that is adduced that bears upon the question: Sidhu at [62]-[64], citing Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [143], referring to Gould v Vaggelas (1984) 157 CLR 215 at 236 (Wilson J). The party claiming estoppel bears the legal burden of proving they were induced to rely upon the representor's promises: Sidhu at [61]; Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242; (2021) 106 NSWLR 227 at [156].

286    Whist it will always depend on the facts, it is possible to properly draw an inference of reliance based on inaction. In Sidhu, the plurality said:

[51]    In Newbon v City Mutual Life Assurance Society Ltd [(1935) 52 CLR 723 at 735] Rich, Dixon and Evatt JJ, speaking of a case where the party setting up the estoppel asserted a failure to take action in reliance upon an assumption allegedly induced by the conduct of the defendant, said:

Where inaction is the natural consequence of the assumption, the prima facie inference may be drawn in favour of the causal connection … Any general presumptive connection between inaction and a belief in a state of facts must depend upon probabilities which arise from the common course of affairs, and accordingly must be governed by circumstances.

[52]    In Gould v Vaggelas Wilson J, with whom Gibbs and Dawson JJ agreed, speaking of an action in deceit, said:

If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.

[53]    It is apparent that in the passage cited from the plurality judgment in Newbon v City Mutual Life Assurance Society Ltd, their Honours were speaking of a 'presumptive connection' as the equivalent of the 'fair inference' of which Wilson J spoke.

[54]    In Gould v Vaggelas, Brennan J said (footnotes omitted):

An inference of inducement may be drawn when a party enters into a contract after a material representation has been made to him, but it is no more than an inference of fact and it is settled law that such an inference may be rebutted by the facts of the case.

287    As confirmed by the plurality in Sidhu at [71] and the majority in Kramer at [39], to establish estoppel it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. However, it is necessary to establish that the belief was a contributing cause. As explained by Gageler J in Sidhu at [91]:

To establish that the belief to which she was induced by the appellant's representations was a contributing cause to the course of action or inaction which she took, the respondent needed to establish more than that she had the belief and took the belief into account when she acted or refrained from acting. She needed to establish that having the belief and taking the belief into account made a difference to her taking the course of action or inaction: that she would not have so acted or refrained from acting if she did not have the belief.

288    It was not necessary in order to make out equitable estoppel that the Northern Territory have actual knowledge of the Claim Group's reliance on its representation: Kramer at [58]-[59].

289    Having regard to these principles, I now turn to consider the communications and conduct that inform the estoppel plea.

Events after the 1996 notice

290    There is no question that the Northern Territory received the 1996 notice and NLC covering letter.

291    On 27 August 1996 the NLC wrote to the solicitor for the Northern Territory querying when a reply might be received.

292    By letter dated 17 September 1996, the solicitor for the Northern Territory responded, stating that the Northern Territory was of the view that the previous grant of pastoral leases and other leasehold interests had extinguished any native title which may have existed in the area, and suggested that it was premature to discuss compensation as the effect of pastoral leasehold interests on native title interests was at that time before the High Court in the Wik proceedings (Wik Peoples v Queensland (1996) 187 CLR 1). It was suggested that discussions be held in abeyance pending the decision.

293    On 8 April 1997, after Wik was delivered, the NLC again wrote to the Northern Territory, stating:

In the event that the compensation claims do proceed to the Supreme Court due to a lack of progress on the negotiations, it will obviously be necessary for the appropriate Court to have made a determination as to the existence of native title before the Supreme Court could consider the issue of compensation. My clients consider the most appropriate Tribunal to determine the existence of native title is the Federal Court under the auspices of the Native Title Act. Accordingly, I have today lodged at the National Native Title Tribunal two separate Applications for Determination regarding native title. These Applications will give our negotiations somewhat of a hybrid flavour in that they could be considered to be taking place under either the McArthur River Project Agreement Ratification Act or under the Native Title Act. At this stage, I do not consider it of great note pursuant to what legislation the negotiations are considered to be taking place provided both parties have in fact entered bona fide negotiations.

294    On 8 April 1997 the NLC also wrote to the general manager of MRM, informing MRM that the compensation claims had been lodged with the Administrator of the Northern Territory and that two native tile applications had been lodged with the National Native Title Tribunal (NNTT). The letter relevantly said:

Clearly, neither application will have any effect upon the operation of your mine or the port facility. The Applications do not seek any form of compensation from your company. Further the Applications do not seek to challenge the validity of the mineral leases which you hold. Accordingly, neither Application can have any impact upon the commercial operations of your mine or the port facility.

…

There is one possible way that your company could become involved in the compensation issue but that would only arise with your complete co-operation. I envisage that my clients who are claiming native title in respect of the mine site would be prepared to accept as compensation for the impairment of their native title rights the ability to purchase on commercial terms McArthur River Station. My clients wish to have the ability to have McArthur River Station scheduled pursuant to Schedule I of the Aboriginal Land Rights (Northern Territory) Act 1976 so that the land became Aboriginal land.

…

We will be raising this possibility with the Northern Territory Government in the course of our compensation discussions. However, obviously such a proposal could not proceed without the agreement of your company as the present proprietor of the pastoral lease over McArthur River Station.

I would be grateful if you could provide us with some preliminary indication as to whether such a proposal would be of interest to you.

295    On 15 April 1997 the solicitor for the Northern Territory (Tom Anderson) acknowledged receipt of the 8 April letter and said that he had sought instructions from his client.

296    On 2 May 1997 the Territory advised the NLC that it would not commence negotiations prior to the NNTT accepting the native title determination applications.

297    On 8 May 1997 the NLC (Paul Hayes) telephoned Mr Anderson expressing frustration with the delays in negotiations. According to Mr Hayes' file note, the topic of negotiations was raised:

I noted that this conversation was basically not getting anywhere and I suggested to him that the Northern Territory Government has no intention of ever considering any native title claim until such time as the Court obliges them to do so. Tom agreed that this may well be the case. I then pointed out that in that case, the concept of bona fide negotiations would be a difficult one for the Northern Territory to entertain: notwithstanding that the Northern Territory's own legislation specifically contemplates this. Tom pointed out that the legislation also contemplates that the matter will be resolved in the Supreme Court. I pointed out that that provision is on the assumption that negotiations have taken place that had not proved fruitful. In other words, the legislation does entertain that the matter could be resolved by negotiation.

298    Mr Hayes informed Mr Anderson on 16 May 1997 that the applications to the NNTT had been accepted and again urged that negotiations commence.

299    On 5 June 1997 Mr Hayes wrote to Mr Anderson asking when a response might be received.

300    On 23 June 1997 Mr Anderson confirmed that his office had been advised by the NNTT that the applications had been accepted but was awaiting 'formal notification of the acceptance' from the NNTT. Mr Anderson said once formal notification was received he would take instructions on commencing negotiations. Mr Anderson informed the NLC that those steps may take 'some time'. Mr Hayes replied on 1 July 1997, recording frustration for the delay.

301    On 9 July 1997 MRM informed Mr Hayes that it would not consent to any regime whereby future exploration and mining activities on the area of McArthur River Station might become subject to the Aboriginal Land Rights (Northern Territory) Act but asked to be kept informed of the NLC's discussions with the Northern Territory government.

302    Communications (at least those in evidence) relating to the 1996 notice and compensation applications appear to have stalled until 2003, when the NLC wrote to the Chief Minister of the Northern Territory.

303    In February 2003 the NLC wrote to the Northern Territory Chief Minister raising its concerns:

I refer to the recently announced proposed conversion and expansion of the McArthur River mine to an open cut operation, and consequent considerable increase in output and potential effect in relation to Aboriginal interests and environmental issues.

The McArthur River mine was the first mining development to be approved after the High Court's decision in Mabo No 2 in 1992 - although it predated the enactment of the Native Title Act 1993 (NTA). The legality of the mining lease was guaranteed by the McArthur River Project Agreement Ratification Act (1992) (NT), and is the subject of a specific provision in the NTA which ensures that native title has not been extinguished (s 46).

Negotiations were conducted in 1993 which resulted in a limited arrangement with the Commonwealth, but did not involve agreement with either McArthur River Mine Pty Ltd or the Northern Territory. Consequently in 1996 the traditional owners lodged a claim for compensation with the Administrator under s 4B of the McArthur River Project Agreement Ratification Act which, if resolution cannot be achieved, may be referred to the Supreme Court for decision. Relevantly, in Ward the High Court expressly declined to decide whether native title may include minerals in the Northern Territory (in contrast to Western Australia where it was held that native title to minerals was extinguished by legislation in the late 19th century: see Ward High Court para 461, cf WA at para 376 to 385).

The traditional owners in the 1993 negotiations did not have the benefit of mediation or arbitration before the National Native Title Tribunal under the current 'right to negotiate' procedures - since the NTA had not been enacted. Compensation discussions under s 4B have not yet been held.

The proposed conversion and expansion of the mine raises site and environmental issues which it is anticipated may be of significant concern to traditional owners. Depending on the nature of the proposal, native title issues may also arise. The Northern Land Council (NLC) is committed to ensuring that consultations are conducted in a manner which ensures that the interests of the traditional owners are incorporated regarding the proposed conversion and expansion of the mine.

In that regard the NLC considers that the proposal is an important opportunity to resolve the outstanding compensation issue. An important consequence of the enactment of the NTA is that there has been significant improvement regarding the recognition of Aboriginal interests by major mining companies. This has included negotiated benefits intended to recognise Aboriginal interests regarding, for example, Century Zinc in Queensland and the Merlin mine in the Northern Territory. Importantly some companies have taken the important step of negotiating agreements in relation to existing mines (eg Weipa, and current negotiations regarding Argyle).

I would appreciate if the Government would consider its position regarding the question of compensation, with a view to supporting negotiations (between the traditional owners, NT Government, and McArthur River Mine Pty Ltd) to resolve compensation issues as part of the consultations for the proposed conversion and expansion of the mine.

304    Receipt of this letter was acknowledged by the Office of the Chief Minister on 18 February 2003. No further response was received until the NLC raised the matter again in October 2006.

305    On 10 October 2006 the NLC wrote to the Northern Territory Minister for Mines and Energy on a without prejudice basis (references to 'Kurdanji' being to Gudanji, as different spellings are accepted). In summary, the letter and attached paper refer to three matters. The first is the 'outstanding compensation claim against the Northern Territory', with specific reference to both the 1996 notice and the February 2003 letter. Relevantly, the paper stated that:

The Northern Land Council (NLC), on the basis of comprehensive anthropological research, has no doubt that the Kurdanji would succeed before a Court in establishing that non-exclusive native title rights to the maximum extent … existed in 1992, and that the enjoyment of those rights was impaired (but not extinguished) by the grant and operation of the mining lease.

This means that the Kurdanji will succeed in their compensation claim against the Territory, and that the NT Government with respect must proceed on the basis that it is subject to an unquantifiable financial liability. This liability, I understand, is not presently disclosed in the NT Treasury's financial statements.

…

The law of native title compensation is presently unclear, there having been no decided cases. It is clear, however, that the operation of [the] mine has damaged and interfered with major sacred sites and culturally significant areas, and thus impaired the important native title rights to access, maintain and protect those sites and to engage in cultural activities. This includes:

•    damage to Mumunini, a major site, by a company bulldozer in the 1970s;

•    damage to Malayarinini, a major site, by a company bulldozer in the 1970s;

•    damage to Jirrinmini, a major site connected with a rainbow snake, by the intrusion of a water pipe.

Access to many sites has also been considerably restricted by the development.

This damage and interference is continuing, and would be substantially increased if the proposed river diversion and open cut expansion occurs.

Specifically, given concerns publicly expressed by traditional owners, the NLC has recently sought anthropological advice as to the cultural effect of the proposed expansion and river diversion. That advice, from an experienced anthropologist who interviewed custodians of sites and Kurdanji traditional owners, is that the proposed river diversion will have major and significant impacts in relation to the 'totemic essence' of the rainbow snake (which is strongly associated with water including the McArthur River on the mining lease), with further research required to ascertain whether rainbow snake and associated sites are directly affected. The cultural significance of the river vis-a-vis the diversion has been raised for some years, and was indicated as far back as 1976 in research conducted for the NT Museum.

This research suggests that, bearing in mind information now available, review and reconsideration is required regarding the adequacy of current Authority certificates.

Separately, regardless of whether current certificates are adequate, it is clear that the proposed diversion concerns land and sites of great cultural significance and that Kurdanji traditional owners will be entitled to considerable compensation from the Territory for impairment of their native title rights.

The NLC considers that compensation for impairment of these, and other, native title rights would be considerable.

Notwithstanding that the damage and interference to sacred sites and culturally significant areas has been (or would be) caused by the mining company, which is extracting considerable wealth from the mine, it is the Territory which is liable for compensation …

306    The NLC then proposed in the paper that the Northern Territory assist in securing an agreement with MRM for compensation, such that the Northern Territory would be released from its liability to pay compensation. That is, although the paper anticipated seeking compensation for the proposed diversion and expansion from MRM, it maintained the Northern Territory had an existing obligation to pay compensation. In the same paper the NLC challenged the validity of the AAPA certificates issued on 30 January 2004 (an issue developed further in Part L).

307    The paper also sought the Northern Territory's assistance to ensure that appropriate information be provided to the Aboriginal community as to both the diversion of the river and potential pollution from the storage of tailings above ground.

308    On 16 February 2007 the then Chief Minister for Indigenous Policy (Claire Martin) responded to the NLC's letter. The Chief Minister noted that the expansion of the mine had been approved; that whilst it was not intended to address native title compensation, the mine owner (referred to at the time as Xstrata) had provided a community benefits package 'which comprises $32M over 25 years' for projects to benefit Aboriginal groups; that the Chief Minister had legal advice that the impugned AAPA certificates were valid; and that environmental issues were 'adequately addressed' in various environmental impact reports on the public record. As to compensation, the response said:

The issues relating to compensation are complex. As you would be aware, my Government's policy is to, where possible, attempt to negotiate agreements rather than proceed to litigation. In this case, it remains the Government's view that any liability for native title compensation would be dependent on the establishment of native title. Therefore, I am not convinced that there is any realistic option available to us that does not first require a determination of native title in the area.

I understand that following discussions in 2003 over these matters between senior Northern Territory Government and Northern Land Council officers, you were invited to put your views on the legal position relating to compensation. Presumably this was overtaken by the events relating to the Xstrata take over bid and subsequent events. I am now inviting you to provide that advice in order that an informed discussion of the options available to us can occur.

309    Section 4AB of the Project Act was enacted shortly after, on 4 May 2007 (with the three-year notice period for compensation claims prescribed by s 4(1) of the Project Amendment Act 2007).

310    It must also be recalled that in 2006 and 2007 the Claim Group actively opposed the expansion of the mine and the authorisation in the Lansen litigation, referred to above.

311    Experience shows that the process towards securing a native title determination may take many years.

312    It was not until 2015, when the reasons in Ngajapa were delivered, that the Claim Group's native title rights and interests were recognised by the Determination. The time period for formal compliance with s 4B(2) of the Project Act had by then long expired.

313    Efforts to negotiate compensation were renewed by the NLC in May 2017. The then CEO of the NLC (Joe Morrison), wrote to the then Chief Minister of the Northern Territory (Michael Gunner) on 11 May 2017 referring to the recognition of native title, and providing a history of the attempts to negotiate a compensation settlement with the Northern Territory (and the spelling of 'Gurdanji' is utilised, another accepted spelling for Gudanji). The letter relevantly stated:

The native title holders to the areas covered by the relevant mineral leases on which the mine is situated are Gurdanji and Yanyuwa Peoples. They have asked the Northern Land Council (NLC) to negotiate with your government in order to try and achieve agreed compensation outcomes without the need for litigation, and to right the historic wrong by which the mine was established on their country without consultation. The opportunity to settle this long overdue and outstanding matter is in keeping with your government's commitment to dialogue with Aboriginal Territorians about a treaty.

…

However, compensation is payable for the effects of the grants, and the mining activities done under the grants, pursuant to both the Ratification Act and the Native Title Act. The Ratification Act provides that compensation may include providing facilities, services and property (s 4B) and the Native Title Act has similar provision for non-monetary compensation (s 51).

Representatives of the Gurdanji and Yanyuwa Peoples lodged a claim for compensation under the Ratification Act for the effects of the mine on their native title rights on 25 June 1996. In a series of correspondence between 27 August 1996 and February 2007, the NLC sought to negotiate the quantum and nature of this compensation with the [Northern Territory Government] without success. The then-Territory government would not entertain such negotiations unless a native title application was lodged and successfully determined in relation to the mineral lease areas … The then-Territory government maintained that position during the time plans were made to expand the mine to an open cut operation that involved diversion of the McArthur River.

On 26 November 2015, native title was determined in respect of the McArthur River Pastoral Lease (Ngajapa v Northern Territory of Australia [2015] FCA 1249), including in relation to the mineral lease areas (the non-extinguishment principle applies in respect of the mineral leases, meaning that when the mineral leases come to an end in 2043, the native title will have full force and effect: Native Title Act, section 46). As such, we see no reason why negotiations cannot now commence in respect of the NTG's liability for the grant of the mineral leases. Such negotiations would address liability under the Native Title Act and the Ratification Act.

…

The NLC, on behalf of the Gurdanji and Yanyuwa Peoples, therefore invites the Territory to engage in a dialogue to settle the compensation claim centred on the acquisition or surrender of the McArthur River Station pastoral lease and its scheduling as Aboriginal land. The arrangements of the kind I have outlined should be in place before approval of the latest revised mine project as a measure integral to the success of an approved closure plan for the mine.

The Gurdanji and Yanyuwa Peoples, through the NLC, are also seeking to engage with Glencore to make an agreement for the operation of the mine beyond 2018, that is, for the renewed term of the mineral leases up to 2043, and further beyond that for the rehabilitation and closure of the mine as may be required under the revised mine project.

Although compensation by the Territory for the effects of validating the mineral leases on the native title rights of the Gurdanji and Yanyuwa Peoples is distinct from any agreement they may make with Glencore about the future operation of the mine, it is desirable that a dialogue be opened up among all interested parties …

314    Mr Gunner replied by letter dated 18 July 2017. His letter acknowledged that the Northern Territory's position on negotiating compensation had depended upon native title being recognised and the identification of the native title holders. The letter also acknowledged that this had now occurred.

315    However, at the time of the letter the appeal from Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 (Griffiths TJ) was reserved before the Full Court and Mr Gunner relied upon this in saying that the issue of calculating native title compensation was not settled.

316    Mr Gunner said that:

Notwithstanding this, the Northern Territory Government is prepared to engage in discussions with the native title holders/NLC on a confidential, and without prejudice, basis in a spirit of goodwill to explore what settlement options might be available. The Northern Territory Government prefers to resolve these issues by agreement, rather than through litigation, wherever possible.

317    In October 2017 emails were exchanged on behalf of the Northern Territory and the NLC in order to set up discussions about compensation.

318    As this proceeding indicates, nothing was ultimately resolved.

Determination - estoppel

319    The evidence referred to reveals disclosure by the Claim Group of the basis and breadth of their claims for compensation over a long period of time and a pattern on the part of the Northern Territory of deferring any compensation negotiations.

320    The Northern Territory deferred negotiations initially pending the outcome of Wik, then pending the acceptance of native title applications by the NNTT, and then pending the formal notification of the acceptance of those applications.

321    When the prospective conversion to open-cut was announced, the NLC on behalf of the Claim Group moved quickly in its letter of February 2003 to raise concerns about the stalled negotiations. The Claim Group referred expressly to the need for consultations that ensure 'that the interests of the traditional owners are incorporated regarding the proposed conversion and expansion of the mine', and asked the Northern Territory to consider its position 'to resolve compensation issues as part of the consultation for the proposed conversion and expansion of the mine'.

322    It was therefore readily apparent that the Claim Group expected compensation negotiations to extend to and take into account the mine expansion. The Northern Territory was on notice of this.

323    Following apparent inaction, it was the NLC that raised the matter again, in October 2006. Its letter and paper referred not only to the 1996 notice but to the February 2003 letter and referred to the Northern Territory's 'unquantifiable financial liability'. The paper expressly referred to the fact that anthropological evidence was being obtained as to the proposed mine expansion and river diversion, observing in particular that 'it is clear that the proposed diversion concerns land and sites of great cultural significance and that [Gudanji] traditional owners will be entitled to considerable compensation from the Territory for impairment of their native title rights'.

324    Again, by these communications the Claim Group through the NLC had squarely disclosed that their claim for compensation extended to the mine expansion, and was not limited to the matters in play at the time of the 1996 notice.

325    The Northern Territory in 2007 again deferred any compensation negotiations, this time on the basis that it first required the Claim Group to obtain a determination in relation to their native title. In so doing the Northern Territory did not suggest or disclose that it required the Claim Group to provide any different or additional form of notice of their compensation claim. The apparent impediment to participating in negotiations was put only on the basis of the requirement for a determination.

326    Further, there was no question that the Northern Territory was on notice of the Claim Group's objection to the expansion, the Northern Territory having been a party to the Lansen litigation.

327    The Determination was finally made in 2015. By the time the Determination was made, it was not possible for the Claim Group to give formal notice within the prescribed Project Act time period relating to the enactment of s 4AB.

328    Having regard to that context, I am satisfied that the Northern Territory made a clear representation to the Claim Group through its written communications with the NLC, and in particular by the letter of 16 February 2007, to the effect that it knew that the Claim Group were seeking compensation including in relation to the mine conversion, and that such claim for compensation would be the subject of negotiation but not until a native title determination was made.

329    Whilst not express, the Northern Territory also implicitly represented by the communications that it was already on notice of the claim, and that either no further formal notice would be required, or that the failure to provide a formal notice would not be an impediment to pursuit of their claim.

330    The Northern Territory encouraged the native title holders by its conduct to postpone (not abandon) the pursuit of their claim, regardless of the need for any further formal notice, and to first seek a determination of native title. Even once the amendment to the Project Act was enacted (shortly after the 16 February 2007 letter), the Northern Territory did not inform the Claim Group of any need for formal notice under the Project Act to confirm what it already knew, and did not disabuse the Claim Group of any assumption to the contrary.

331    Despite the Northern Territory repeatedly deferring negotiations, its communications do not indicate that at any point it required any further formal notice, either prior to or after the 2007 amendment to the Project Act, in order to negotiate with the Claim Group or so that the Claim Group might preserve their rights.

332    The relevant communications after the period for any formal notice and after the Determination are consistent with this assessment. The NLC's May 2017 communication to the Chief Minister squarely addressed the repeated deferral of negotiations including 'during the time plans were made to expand the mine to an open-cut operation that involved diversion of the McArthur River'. Nothing in the communication suggested that the Claim Group had abandoned or did not seek compensation relating to the expansion at any point.

333    The Chief Minister's letter of 18 July 2017 which opened the door to pursuing confidential discussions with the Claim Group did not suggest the absence of any prior formal notice was a bar to compensation.

334    In making the representation, the Northern Territory knew or would reasonably have expected that the Claim Group would rely on it when pursuing the Determination and compensation. The Northern Territory was responsible for deferring compensation negotiations (pending the outcome of Wik, pending the filing, approval and formal notification of native title determination applications by the NNTT, then pending the making of a determination).

335    Self-evidently, time passed while those events progressed.

336    The Northern Territory knew that in terms of formal notice, only the 1996 notice had been provided. It knew from at least October 2006 that the Claim Group (through the NLC) were investigating the effects of the mine expansion and river diversion, including by engaging anthropologists, and that the Claim Group would be seeking 'considerable compensation' in that regard. It knew that despite communicating with MRM about potential financial agreements, the Claim Group continued to seek compensation from the Northern Territory.

337    The fact that the Claim Group, having informed the Northern Territory of their opposition to and claim for compensation relating to the mine expansion, then proceeded with the course stipulated by the Northern Territory in seeking the Determination, without receiving any request for or providing any further formal notice of their claim, was to be expected and is unsurprising.

338    Reliance by the Claim Group is also established to the requisite standard. The evidence makes clear that the Claim Group, both before and from the time of the disclosure of mine expansion plans, were keen to negotiate and to preserve their rights to compensation. The objective circumstances clearly support a finding of fact, that arises by fair inference, that the Claim Group would not have omitted to provide or notify a further formal claim under the Project Act after the enactment of s 4AB and within the relevant three-year period, but for the Northern Territory's representation to the effect that it would at a point in the future continue to negotiate a compensation claim, including in relation to the mine expansion, regardless of whether there was any further written notice of such claim.

339    Even if there were other reasons as to why a further formal notice of claim was not filed (and there was no evidence as to this), I am satisfied that the Claim Group (through the NLC) was influenced in their action (or inaction) by the conduct of the Northern Territory, as discussed in Sidhu. Such a finding arises objectively from the importance to the Claim Group of giving notice of a claim, if strict reliance on s 4B(2) of the Project Act had otherwise been maintained by the Northern Territory.

340    Detriment is apparent. The Claim Group did not formally notify a claim within the three-year time period prescribed under the (amended) Project Act. If the Northern Territory is permitted to rely on its defence based on the absence of notice relating to s 4AB, and assuming (for argument's sake) the enactment of s 4AB otherwise constituted an acquisition of property, then the Claim Group is unable to pursue a claim for compensation based on such acquisition. That prejudicial loss of a valuable opportunity constitutes sufficient detriment within the meaning of the authorities addressed and developed in Delor Vue.

341    In the circumstances it would be unfair and unjust for the Northern Territory to seek to rely on the absence of a notice of claim being lodged relating to the enactment of s 4AB, and so to resile from the position that it remained open to the Claim Group to pursue their claim regardless. Were it relevant, the elements of equitable estoppel are made out.

PART H – WERE GRANTS OF NON-PASTORAL USE PERMITS RELEVANT ADMINISTRATIVE ACTS?

342    The 15 non-pastoral use permits were granted to MRM by the Pastoral Land Board under the Pastoral Land Act between 9 April 1994 and 26 February 2010, for the establishment, operation and management of dredge spoil ponds in connection with the port operations. The area is onshore, abuts the area covered by MLN 1126 and is within PPL 1051 (it can be seen on Attachment 3 marked NP003).

Relevant Project Act provisions

343    Section 4(6) of the Project Act, which ratified the Project Agreement, provides:

The Territory, its Ministers, instrumentalities and authorities and any local government authority are authorised, empowered and required to do all things necessary or expedient for the carrying out or giving full effect to the Agreement.

344    Relevantly, the Northern Territory admitted that the Board is an instrumentality or authority of the Territory for the purpose of s 4(6) of the Project Act.

345    To recap, s 4B of the Project Act as amended in 2007 relevantly provides:

4B    Compensation

(1)    To the extent that a relevant legislative or administrative act results in the acquisition of property on terms that would not (apart from this section) be just, the Territory is liable to pay compensation sufficient to remedy the injustice.

…

(6)    In this section:

…

relevant legislative or administrative act means:

(a)    a grant effected by section 4A; or

(b)    a validation effected by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993; or

(c)    the enactment of section 4AB; or

(d)    anything done under this Act.

346    The definition in s 4B(6) of 'relevant legislative or administrative act' was introduced by the Project Amendment Act 2007. The Claim Group observed in closing that there was some confusion on the pleaded case as to whether it was the original s 4B wording that should apply, because it applied at the time of the 1996 notice. The original s 4B used the language of 'anything done or action taken under or in pursuance of this Act'. It did not contain any equivalent definition to s 4B(6)(d). The Claim Group pleaded the terminology of the amended s 4B and the parties proceeded on that basis, making submissions as to the meaning of a 'relevant administrative act'. The Claim Group submitted there was no material difference and the Northern Territory did not contend otherwise. Accordingly, I will proceed on the basis of the case as put by the parties.

347    The question then is whether the grant of the permits by the Board was 'anything done under the Project Act' within the meaning of s 4B(6)(d). This requires consideration of the powers of the Board but also the Project Act and the Project Agreement.

The Pastoral Land Act

348    The Board was established by s 11 of the Pastoral Land Act as a statutory authority. Division 2 of Pt 3 of the Pastoral Land Act describes the structure and composition of the Board while Div 3 outlines its powers and functions. Section 30(3) of the Pastoral Land Act provides that the Board may act as agent for the Territory or a statutory corporation. It is admitted on the pleadings that the Board is an instrumentality of the Territory.

349    Part 7 of the Pastoral Land Act provides for non-pastoral use of pastoral land. The Northern Territory referred to the version of the Act in force as at 1 December 1993. Relevantly, it provides:

86    Application for permission

(1)    A pastoral lessee who wishes to use all or any part of the land the subject of his or her lease for a purpose that is not a pastoral purpose may, in such form as the Board requires, apply to the Board for permission to do so.

(2)    Before considering an application under subsection (1) the Board may request from the applicant such additional information relating to the proposed use as it thinks fit and may defer its consideration until the information is provided.

87    Assessment of application

(1)    In considering an application under section 86(1) the Board shall:

(a)    take into account current government policy known to it in relation to the type of use proposed; and

(b)    consider the likely effect of the proposed use on the environment and the pastoral enterprise of the lessee,

and may consider or take into account such other matters as it thinks fit.

(2)    For the purposes of subsection (1)(a) the Minister may issue guidelines to the Board.

88    Decision of Board

(1)    After considering an application under section 86(1) the Board may, in its discretion, give its written permission for the use of the land by the pastoral lessee for a purpose that is not a pastoral purpose and, subject to subsection (2) and section 4(d) and Part 6, but notwithstanding anything else in this Act or a provision of the relevant lease document, the lessee may use the land accordingly.

(2)    Permission under subsection (1) may be granted for such period, not exceeding 5 years, and subject to such conditions (including as to the payment of an annual fee, if any, prescribed under section 7 by the Minister) as the Board thinks fit and specifies or provides for in the permission document.

350    The permit decisions determining the permits are in a relatively standard one or two-page form. Each refers to an application brought under s 86 by or on behalf of MRM and notes (in the same or similar terms):

Application lodged under section 86 of the Pastoral Land Act by McArthur River Mining Pty Ltd of …Winnellie NT on [date] for permission to use part of Perpetual Pastoral Lease No.1051 McArthur River Station for a non pastoral use being the continued operation and management of dredged spoil ponds.

351    Each permit decision is to the effect that the Board determined to grant permission for the use of the land as outlined in the application for the specific period of time, subject to payment of an annual fee ($100). Permits issued between 1994 and 2005 required compliance with environment and dredging management plans and maintenance of a bank guarantee of $100,000 for final rehabilitation. Permits issued between 2005 and 2010 required compliance with mining and dredging management plans and provision of a bank guarantee of $150,000 for final rehabilitation.

352    I observe that the first of the permits (9 April 1994) included a notation that:

In the granting of this permission the Pastoral Land Board does not authorise the doing of any act that may affect any native title rights and interests (as defined in the Native Title Act) that may exist over the land the subject of this permission.

353    This notation was not included in the subsequent permits, but in the end it does not appear to make any difference to the question being addressed.

354    None of the permit decisions make reference to the Project Agreement or the Project Act. The conditions do not expressly refer to the Project Act. However, and for example, the permits that date from 2005 contain the following or similar condition:

All activities shall be in accordance with the Mining Management Plan and Dredge Management Plan approved by the Chief Executive, Department of Primary Industry, Fisheries and Mines.

355    Each permit decision attaches a map that shows the permit area shaded and an area marked 'spoil disposal', located next to the boundary of the 'Bing Bong Loadout Facility'.

356    Each permit decision also refers to a right of appeal under s 119 of the Pastoral Land Act to the Registrar of the Pastoral Land Appeal Tribunal.

Project Agreement terms

357    Clause 4 of the Project Agreement provides for MIM to apply for mineral leases in accordance with the provisions of the Mining Act for the purposes of the Project (including one over a designated area within what was then the Bing Bong Pastoral Lease No 686).

358    Clauses 5 and 10 of the Project Agreement impose obligations on the Territory to use its best endeavours to grant or cause to be granted certain interests.

359    Clause 5 of the Project Agreement provides:

5.    LEASES, LICENCES, EASEMENTS AND RIGHTS OF WAY

The Territory shall use its best endeavours to grant or cause to be granted to the Company, upon such terms and conditions as shall be agreed upon in writing between the parties, mining tenements, licences, easements and rights of way reasonably required or incidental to the construction and operation by the Company of the McArthur River Project, for a term terminating no later than the termination or expiration of the Mineral Leases or any renewals of the Mineral Leases.

360    Clause 10 of the Project Agreement provides:

10.    PORT

(1)    Construction of the barge loading facility (in this clause referred to as the 'port') to be located within the Mineral Lease over an area situate within the Bing Bong Pastoral Lease No. 686 and adjacent Territory waters, shall be the responsibility of the Company.

(2)    The Company shall be the manager and operator of the port and shall be entitled to license or permit the use of the port or parts of the port by other persons and to charge users of the port such fees as are necessary to recover the Company's costs of the port.

(3)    The Territory shall use its best endeavours to issue all necessary consents, permits, licences and approvals to allow construction, maintenance and operation of the port and if requested so to do will join with the Company in seeking any consents, permits, licences and approvals which may be necessary from any Commonwealth Department or Authority.

Respective positions of the parties

361    The Claim Group plead that although the grants of the permits were made to MRM under the Pastoral Land Act, they were 'relevant administrative acts' done in accordance with cl 5 of the Project Agreement and under the Project Act within the definition in s 4B(6)(d) (the reference to cl 5 was extended to a reference to cl 10 in submissions, and both cl 5 and cl 10 were addressed by the Northern Territory). The Northern Territory relies on Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 in submitting that the grants were not 'anything done' under the Project Act because they were made under the Pastoral Land Act.

Tang

362    The High Court in Tang was concerned with the meaning of the phrase 'made … under an enactment'. Tang concerned a decision made by a subcommittee, established by Griffith University, to exclude Ms Tang from candidature for a PhD program on the basis of academic misconduct. The decision was confirmed by an internal appeals committee, also established by the University. The majority in Tang held that the disputed decisions were not 'made … under an enactment' within the meaning of the Judicial Review Act 1991 (Qld). The University was established under the Griffith University Act 1998 (Qld).

363    The Judicial Review Act 1991 (Qld) conferred (by s 4(a)) statutory rights of judicial review in relation to:

a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion).

364    The language of s 4(a) of the Judicial Review Act 1991 (Qld) is similar to that used in other review legislation.

365    In Tang, Gummow, Callinan and Heydon JJ traversed the authorities on the meaning of the expression 'a decision of an administrative character made … under an enactment' in the Administrative Decision (Judicial Review) Act 1977 (Cth).

366    The High Court in Fuller v Lawrence [2024] HCA 45 recently summarised the plurality's treatment of a number of arguments in Tang as follows (at [12]) (footnotes omitted):

The plurality rejected a construction of s 4(a) turning upon the identification of the 'immediate' or 'proximate' source of power to make the relevant decision as deflecting attention from the interpretation of the Review Act (and the AD(JR) Act) in the light of legislative subject, scope and purpose. They also rejected a construction turning upon the 'true lawful source' of the power to make the decision. Their Honours identified cases in which a decision, required or authorised by an enactment, is nevertheless not 'made under' that enactment. These included where the decision derived its capacity to bind from contract or some other private law source; where a decision to vote at a creditors meeting was not given statutory effect by the sections relied upon and only affected legal rights because of the cumulative effect of votes later cast; and where the power to make the decision was not sourced in a relevant statute, even though the decision, once made, had a critical effect for the operation of that statute.

367    The plurality in Tang fixed the construction as follows (at [89]):

The determination of whether a decision is 'made … under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made … under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

368    In Tang, as to the first criterion, it was found that the decisions were authorised by the University Act, as the decision-making committees involved depended for their existence and powers upon the delegation by the Council of the University under provisions of that Act (at [96]). However, the second criterion was not met. There was at best a consensual mutual relationship between the parties, and that mutuality was brought to an end, but not by way of any decision under the University Act. The plurality concluded (at [96]):

The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former.

369    The Tang criteria have been applied on numerous occasions in the context of administrative and judicial review and were applied in Fuller v Lawrence in upholding a decision that a direction made by a corrective services officer in accordance with a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) was subject to review. It was held that the direction was a decision made 'under an enactment' (that is, the DPSO Act) as that phrase was explained in Tang.

370    However, in the overwhelming majority of the numerous occasions on which the Tang criteria at [89] have been applied by superior courts, that application has been in the context of the search for a right of review, or in relation more generally to review provisions. There are a small number of cases where in a contractual or other statutory sense the word 'under' is construed with reference to Tang, but unsurprisingly, the specific circumstances of those cases do not provide particular assistance in this case.

371    Here, Tang is relied on by the Northern Territory in a context outside review.

372    The question as to whether the grants of the permits were acts done under the Project Act must be answered with reference to the statutory context in which the phrase appears and the particular circumstances of the case.

373    So, whilst Tang provides some useful guidance, it is necessary to have regard to the established principles of statutory interpretation in construing the bounds of s 4B(6)(d).

Principles of statutory interpretation

374    The meaning of a provision must be determined by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]. But context is a guide to meaning: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; and Project Blue Sky at [69]. Therefore, the statutory text must be considered in its context, including legislative purpose, legislative history and extrinsic materials: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]; and Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [5].

375    Context should be regarded in its widest sense to include such things as the existing state of the law and the mischief which the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; and SZTAL at [14].

376    As to the importance of purpose and policy, Gageler J said in Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 (at [71], citing Project Blue Sky at [69]):

Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are important. More important is the 'purpose and policy' reasonably attributed to the provision within the statutory scheme.

377    However, the search for the purpose of a provision is to be derived from the legislation. The purpose is not to be derived from an assumption about a desired policy or operation of the provision, which is imputed to the legislature, and then characterised as a statutory purpose: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26]; and Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [28].

378    Identifying a purpose of the legislation as a whole does not mean that every provision has that purpose: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [29]. For example, in ADCO it was accepted that workers compensation legislation had a beneficial purpose, but that did not mean that every provision was to be construed beneficially in favour of the worker. The purpose of the relevant provision must be identified.

379    With these principles in mind, I turn to the provision in question and its context.

Construction of s 4B(6)(d) of the Project Act

380    The Northern Territory's position rests upon an application of Tang such that for compensation to be payable under s 4B of the Project Act, it is the Project Act that must give the permits legal force or effect. That is, it relies on the second Tang criterion. At first blush it is a persuasive argument. It is clear that the permits were issued 'under' the Pastoral Land Act.

381    However, it does not follow that they were not also a thing 'done under the Project Act', if that phrase is given a broad meaning. It can be accepted that in the majority of circumstances that address the meaning of 'under', including those where the search is for a right of review, there is a search for a direct connection between the statutory authority for the doing of the act and the act itself. However, the phrase 'anything done under this Act' in s 4B(6)(d) must derive its meaning from the context in which it is found.

382    The Project Agreement, to recall, expressly defines the McArthur River Project in a manner that includes the transporting of concentrate for sale, export or further processing and incidental purposes. It always anticipated and permitted the construction of a Port. Clause 10 of the Project Agreement expressly deals with it. Clause 10(3) gives contractual force to an obligation on the part of the Northern Territory to use its best endeavours to issue, relevantly, all necessary permits to allow construction, maintenance and operation of the Port. A non-pastoral use permit would fall within this permit description.

383    The Project Act adopts the definition of the McArthur River Project outlined in the Project Agreement, ratifies the Project Agreement and includes it as a schedule. Section 4(6) expressly requires the Territory and its instrumentalities to do all things necessary or expedient for the carrying out of the Project Agreement.

384    Section 4B was introduced to provide for compensation for the acquisition of property otherwise than on just terms resulting from the Project. There is no apparent reason why a limitation should be placed on access to compensation, so that only some acquisitions of property authorised by the Project Act might lead to a right to compensation.

385    I will turn separately to the meaning of 'acquisition of property', but at a general level the introduction of the compensation regime was to compensate for the Project generally, and the Project includes both the open-cut mine and the Port. It would be an odd result if compensation for an administrative act, anticipated and required for the purpose of the Project but necessarily done under a different Act, is thereby denied.

386    As noted, the original s 4B compensation provision used different language. Section 4B(1) provided for compensation for an acquisition of property as a result of 'anything done or action taken under or in pursuance of this Act'. Arguably, that phrase, and its reference to anything done 'in pursuance of this Act' is broader than the amended s 4B(1) and the phrase 'anything done under this Act' in s 4B(6).

387    Although the Claim Group did not emphasise this difference, I have considered whether the amendment was intended to bring about any narrowing of any entitlement to compensation. That does not seem to have been the intention of the Parliament. To the contrary, the explanatory statement at the time the Bill was introduced said this of the proposed amendment to s 4B:

This clause amends existing sections 4B(1) and (2) to include the ratifications effected by section 4AB in the class of actions for which just terms compensation is payable should an acquisition of property be effected. Any existing claims under section 4B are not affected by the amendment.

388    In other words, there is no suggestion that the amendment and the inclusion of the definition of a relevant legislative or administrative act in s 4B(6) was intended to bring about any narrowing of an entitlement to compensation under the Project Act.

389    It can be accepted that the permits were issued by the Board under the Pastoral Land Act. That Act was the direct source of power. The Board, in making its administrative decision, was obliged to consider the application and have regard to the matters in s 87(1)(a) (current government policy) and s 87(1)(b) (likely effect of the proposed use on the environment and the pastoral enterprise of the lessee), and such other matters as it thought fit.

390    Little can be gleaned from the permit decisions themselves, but it can be inferred that the Board was aware of both the Port (from the annexed maps) and, at least from 2005, the existence of mining management plans. The applicant itself, MRM, was a mining company. It is true, as the Northern Territory submitted, that there is no express evidence that the obligation on the Northern Territory under the Project Agreement (cl 10) or any government policy connected with the Project operated upon the Board in the making of the permit decisions. However, it is also artificial to consider the permit decisions were made in isolation.

391    As a matter of fact, it cannot be surprising that dredge spoil sites would be required close to the Port to deposit the material dredged for the purpose of facilitating barge access to the Port. The dredge spoil would not have existed independently of the functions of the Port. It cannot be surprising that proposed sites for disposal would already be the subject of the pastoral lease so that permits to use it for a non-pastoral use might be required. The timing of the grants of the permits (first issued in April 1994) coincides in a general sense with the Project Act coming into effect (initially in January 1993): that is, it is not as if the permits were issued in circumstances disconnected from the Project.

392    The grant of the permits was connected with the Project, even if the power to grant the permits lay in the Pastoral Land Act and technically could be exercised under that Act regardless of the Project Act. More importantly, the Northern Territory, and the Board as its instrumentality, was obliged under s 4(6) of the Project Act to do all things necessary or expedient for the carrying out or giving full effect to the Agreement. Its role in relation to the Port was also express under cl 10(3) of the Project Agreement.

393    Having regard to the text of the amended s 4B and the contextual matters referred to above (all of which are quite particular to the circumstances of the Project Act), it can properly be said that although the permits were granted under the Pastoral Land Act, they were nevertheless also granted pursuant to an obligation under the Project Act. The explanation for the Board acting as it did is in part because as an instrument of the Territory it was required to do so under the Project Act.

394    There is no reason having regard to the text and context to read into s 4B(6)(d) a requirement that to fall within the definition any relevant act must be done only under the Project Act.

395    Accordingly, I consider the grant of the permits falls within the scope of 'anything done under' the Project Act and therefore the grants were relevant legislative or administrative acts for the purpose of s 4B. I consider, returning to what was said in Esso Australia and Project Blue Sky, that this construction of the contested statutory text better fits the context of the statutory scheme for compensation relating to the Project of which that text forms part.

396    Understanding the expression in this way does not open up some right to compensation from any act whatsoever contemplated by the Project Act. It must be recalled that compensation is linked to an act that constitutes an acquisition of property. Section 4B(6)(d) is to operate within this constraint, as addressed in Part I.

397    Finally, I note that the Northern Territory accepted in its defence that the renewal of MLN 582 was a relevant administrative act under the Project Act but sought to distance itself from that 'unwarranted' admission in submissions. It also accepted in its defence that the grant of the Pipeline Licence fell within the scope of s 4B(6)(d), but later submitted the admission was 'unwarranted'. The admissions were not formally withdrawn. Similarly to the position with the non-pastoral use permits, neither MLN 582 nor the Pipeline Licence were directly renewed or granted under the Project Act. Therefore, although the Northern Territory's admissions do not resolve this construction question, they are inconsistent with its position on the non-pastoral use permits. Perhaps unsurprisingly in the circumstances, I received no submissions from the Northern Territory explaining how s 4B(6)(d) did or did not extend to the renewals of MLN 582 or the grant of the Pipeline Licence.

PART I – WERE COMPENSABLE ACTS ACQUISITIONS OF PROPERTY?

The pleaded acquisition – diminution or impairment

398    The native title interests held by the Claim Group are those described in Part A.

399    Aside from in relation to the Road, the Claim Group does not allege that any of the compensable acts led to extinguishment of their native title interests. Rather, they plead that the compensable acts are not inconsistent with the continued existence of any native title rights, but resulted in an acquisition of property within the s 4B(6) definition by virtue of the conferral on the grantees of inconsistent rights that have diminished and impaired the Claim Group's native title rights.

400    As noted above, s 4B(6) defines 'acquisition of property' for the purpose of compensation under s 4B of the Project Act in an inclusive manner. It is said to include:

(a)    the extinguishment or diminution of an interest in or right in relation to land; and

(b)    any effect on such an interest or right, being an effect of a kind referred to in section 174B or 174D of the Mining Act in relation to private land.

401    The kinds of effects referred to in s 174B of the Mining Act were:

(a)    being deprived of the use of the surface or part of the surface of the land;

(b)    damage to the surface of the land through mining activities conducted thereon;

(c)    being deprived of the use of improvements on the land;

(d)    the severance of the land from other land owned or occupied by them; and

(e)    all other damage to the land or improvements on the land arising out of mining or other work under the mining tenement.

402    The kind of effect referred to in s 174D of the Mining Act was where adjoining or neighbouring land is injured or depreciated in value by or as a result of mining or work carried out on the tenement area. The Claim Group made no substantive submissions in relation to s 174D and did not suggest it was relied upon.

MLNs 1121-1126

403    The Claim Group plead that the diminution in relation to MLNs 1121-1126 arises in the manner provided by s 46 of the Native Title Act, which applies the non-extinguishment principle (s 238(4) of the Native Title Act) to the grants of those mineral leases. That is, although the native title rights continue to exist, those rights have no effect in relation to MLNs 1121-1126 to the extent of any inconsistency until those acts cease to operate or their effects are removed. They submitted that regardless of the application of s 46 to MLNs 1121-1126, each compensable act is inconsistent with the continued enjoyment and exercise of native title rights and interests.

404    The Northern Territory admits that the grant and regrants of MLNs 1121-1126 resulted in an acquisition of property as defined in s 4B(6)(b) from the Claim Group but only insofar as the Claim Group were subsequently deprived of the use of the surface of the land (referring to s 174B(1)(a) of the Mining Act).

405    Whilst the Northern Territory's admission is acknowledged, it remains necessary to consider the nature of the interests granted under MLNs 1121-1126 in order to consider the Claim Group's argument that a diminution of native title rights was effected by the enactment of s 4AB.

406    The terms of each of MLNs 1121-1125 allow MIM to use the lease area for the purpose set out in cl 4, which lists:

(a)    Mining, processing, treatment and concentration of the Ore including the treatment of tailings or other mining material and removal of Ore, Concentrate, tailings or other mining material from the Lease Area;

(b)    the erection of machinery, conveyor apparatus, plant, buildings or other structures, or use thereof;

(c)    impounding and retaining of waste resulting from the Mining, treatment or processing operations;

(d)    the erection and use of residential premises or recreational facilities for persons engaged in or connected with the McArthur River Project;

(e)    the cutting and construction of water races, drains, dams and roads for use in connection with the McArthur River Project;

(f)    the boring or sinking for, pumping or raising of, water for the use of that water for or in connection with the McArthur River Project;

(g)    exploring for minerals on the Lease Area;

(h)    the Mining and use of extractive minerals for or in connection with all or any of the purposes specified in paragraphs (a), (b), (c), (d), (e), and (f) of this clause; and

(i)    such other purposes necessarily incidental to or in connection with paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) of this clause, including the management, protection and rehabilitation of the Environment.

407    The purpose set out in cl 4 of MLN 1126 is in similar terms to that for MLNs 1121-1125, although it has specific additional purposes relevant to a port, such as the dredging of a channel and swing basin for a barge loading facility.

408    The phrase 'McArthur River Project' where used in the leases bears the same meaning as in the Project Agreement (set out in full above at [147]). That is, it refers to mining from the HYC deposit, storage and transport but makes no distinction between underground or open-cut mining. Nor does it otherwise refer to the method of mining.

409    The method of mining operations is addressed in the context of what is called in the leases a 'Mine Plan'. Under cl 6(1), MIM was obliged to submit 'as soon as practicable after the grant of the lease' a proposed mine plan to the Secretary (being the departmental head of the Department responsible for the Mining Act). Once approved by the Secretary, such a plan would stand as the mine plan.

410    It is the mine plan that describes matters such as the construction, development, mining and processing to be conducted by MIM on the lease area in carrying out any of the purposes (cl 6(3)). The terms of the mineral leases provided for rolling mine plans, such that a proposed mine plan was to be provided to the Secretary for approval at least three months prior to the expiry of an existing mine plan (cl 6(1)). Once approved, a mine plan would supersede previous mine plans (cl 6(5)). MIM was to conduct its operations on the lease area in substantial accordance with the mine plan (cl 6(6)).

411    Clause 6(8) of each of MLNs 1121-1126 provides that:

(8)    The Company may from time to time vary or modify its operations on the Lease Area, but should those variations or modifications substantially affect the method, scale or location of those operations as set out in the Mine Plan, the Company shall, prior to the commencement of such variations or modifications of those operations, submit an amendment to the Mine Plan to the Secretary for approval in accordance with sub-clause (4) of this clause.

412    The terms of the mineral leases for MLNs 1121-1126 also required MIM to provide environmental management plans to the Secretary within six months of the grant of the mineral leases and on a rolling basis (cl 8(1)). MIM was obliged to describe in the environmental management plan the controls to be applied in relation to its activities on the lease area, and remedial steps to be taken which, if not implemented, would be likely to cause material damage to water, soil and air (cl 8(3)). MIM was obliged to comply substantially with the terms of an approved environmental management plan (cl (8(6)).

413    By cl 14, (cl 15 in MLN 1126), MIM's right to conduct operations for the mine were to be construed solely by reference to the terms of each lease, the Mining Act subject to the Project Act and all other applicable laws in force in the Territory, and to any documents or returns required to be lodged by MIM with the Minister.

414    Therefore, in summary, from the time MLNs 1121-1126 were granted, MIM had a right to use the mineral lease areas for mining, and on the face of it, mining operations would be inconsistent with and affect the ability of native title holders to continue to exercise native title rights and interests (at least) in the areas of the mining and port operations within the mineral lease areas.

415    Further to these mining rights, MIM was subject to an obligation under the terms of the leases to have mine plans, modifications to such mine plans and environmental plans approved by the Secretary of the Department responsible for the Mining Act. The mine plans had to set out matters such as the construction, development, mining and processing to be conducted by MIM on the lease area. Information such as whether a mine was to be constructed underground or developed as an open-cut mine inevitably would have been information that MIM would have been obliged to set out in a mine plan, or modification of a mine plan, submitted for the approval of the Secretary. So, although the terms of the lease did not proscribe the manner of mining, the Department could in effect do so.

416    The Mine Management Act in force at the time did not provide separately for the approval of mine plans. Its focus was the inspection, safety and work practices at mine sites (regulations made under the Act required environmental management plans to be submitted for approval).

417    However, from 1 January 2002, when the Mining Management Act commenced, additional statutory obligations in relation to authorisations and mining management plans were imposed. These affected mines generally, and not only the Project, but relevantly led to the enactment of s 4AB of the Project Act.

Enactment of s 4AB

418    The Claim Group plead that the enactment of s 4AB of the Project Act resulted in an acquisition of property from the Claim Group by virtue of the diminution and impairment of the native title rights, because it conferred rights that are inconsistent with the enjoyment or exercise of all those native title rights, and the rights conferred by the enactment prevail over the exercise of the native title rights to the extent of the inconsistency. The Claim Group submitted that their rights were diminished because the enactment authorised additional activities on the land.

419    The Northern Territory says that the enactment of s 4AB had no greater effect on native title than rights or interests historically granted over the grant areas, including the grant of PPL 1051 and MLNs 1121-1126 and so denies it resulted in any acquisition of property.

420    The rights and interests granted under MLNs 1121-1126 have been described. Mining was permitted without restriction or qualification as to method, provided it was undertaken in substantial accordance with an approved mine plan.

421    In addition, from its enactment on 1 January 2002 the Mining Management Act required approval by way of an authorisation and mining management plan.

422    As set out above (at [165]), in September 2002 MRM as operator lodged with the Department an application for authorisation and a mining management plan for the underground lead/zinc/silver mine, processing plant and Bing Bong Facility, culminating in authorisation 0059-01. During 2003 MRM proposed the conversion to open-cut mining and an authorisation was purportedly given, culminating in authorisation 0059-02. As determined in Lansen, authorisation 0059-02 was invalid and authorisation 0059-01 did not authorise open-cut mining, and so at that time it was statutorily prohibited.

423    It was the enactment of s 4AB of the Project Act that made authorisations 0059-01 and 0059-02 valid and effective. Section 4AB also provided that the amended mining management plan was valid and effective and was validly approved by the Minister on 13 October 2006.

424    According to the Northern Territory, those authorisations and the mining management plan are directed at mining rights already granted under the mineral leases and their validation did not bring about any further extinguishment or diminution.

425    There are a number of steps relevant to the Northern Territory's submission.

426    First, and the Claim Group did not contend otherwise, the historic grant of pastoral leases had extinguished the Claim Group's rights to control access to the land the subject of MLNs 1121-1126 and to decide how it should be used: Griffiths HC at [69], citing Ward HC at [52], [192], [219], [417]. Therefore, the Claim Group could not exclude others from the land and it was open to the Territory to grant other co-existing rights and interests in and over the land, provided such further rights were not inconsistent with the continued existence of native title holders' rights.

427    Second, when assessing the extinguishing (or diminishing) effect of a compensable act, the emphasis must be on the incidents of the native title rights, rather than on the way in which they might or might not be exercised at the relevant date. These must be considered in the context of the co-existing rights already granted to others. This submission has its foundation in Griffiths HC at [80]-[83].

428    Therefore, it is necessary to address the co-existing interests already granted to MIM over the land the subject of MLNs 1121-1126 by the time of the enactment of s 4AB.

429    Those co-existing interests included all those rights to use and occupy land granted under PPL 1051. Such rights are those relevantly referred to in the Pastoral Land Act, which provided for the grant of a pastoral lease. A pastoral lease is defined (in s 3(1)) to mean a lease granted over Crown land for pastoral purposes. 'Pastoral purposes' is defined (in s 3(1)) as follows:

pastoral purposes means the pasturing of stock for sustainable commercial use of the land on which they are pastured or agricultural or other non- dominant uses essential to, carried out in conjunction with, or inseparable from, the pastoral enterprise, including the production of agricultural products for use in stock feeding and pastoral based tourist activities such as farm holidays, but does not include a use which, under section 91, is declared by the Board not to be a use for pastoral purposes.

430    The co-existing rights are also those interests granted by MLNs 1121-1126 as already described, including the right to use the land for mining.

431    Third, the fact that legislation or regulations might impose conditions on the lease holder's right to mine in a particular manner does not diminish native title rights – rather, the requirement of such conditions controls how a pre-existing right to mine might be implemented.

432    This third aspect has its foundation in Banjima People v State of Western Australia (No 2) [2013] FCA 868 (Barker J), a decision which traverses a range of matters including the determination of native title over land and waters in the East Pilbara region of Western Australia and identification of the claimant group.

433    Relevantly, BHP Billiton held mining interests in the claim area pursuant to the Marillana State Agreement, an agreement ratified and authorised by the Iron Ore (Marillana Creek) Agreement Act 1991 (WA) which commenced on 27 May 1991. Amongst other things, the Marillana State Agreement empowered the State to make lands available to BHP for mining (Banjima at [997]).

434    The regime under the Marillana State Agreement permitted the grant of mining leases and licences for the purposes of the company's mining activities, on reasonable terms and conditions and in accordance with proposals approved by the Minister. The Marillana State Agreement also provided for additional proposals.

435    A mining lease was granted to BHP under the Marillana State Agreement, and one of the issues which Barker J was required to determine was whether it effected further extinguishment of native title, having regard to pre-existing pastoral leases in the area, and whether such further extinguishment was complete (as apparently contended as an alternative argument by the State – see [1067]-[1068]). His Honour found that native title rights were not extinguished by the grant of the mining lease, that there was no necessary inconsistency with the native title rights subsisting at the time of the grant, and that the grant was a validated act to which the non-extinguishment principle under the Native Title Act applies (at [1061]-[1078]).

436    In contrast to the position in Banjima, it was not contended in this proceeding that there has been extinguishment of native title rights by the grants of MLNs 1121-1126 or the enactment of s 4AB of the Project Act. Further, Barker J was considering the future acts regime under the Native Title Act. Regardless of these distinctions, the reasons remain useful and, to my mind, applicable by analogy.

437    Importantly, the reasons in Banjima also address the effect of contractual requirements in the Marillana State Agreement that BHP obtain permission and approvals to conduct certain activities pursuant to the mining lease (at [1089]-[1119]).

438    The State and BHP argued that such approved proposals only regulated activities done pursuant to the mining lease as between the State and (relevantly) BHP and did not expand rights granted by the mining lease. They argued that the contractual requirement for approval of these proposals was a condition on the exercise of BHP's contractual rights granted under the mining lease and that it did not affect native title (at [1099], [1109]).

439    His Honour made clear that the question was not whether as a matter of fact approvals resulted in conduct that impaired a particular activity that was being undertaken pursuant to native title. In other words, it was not necessary to provide and compare evidence of the activities being undertaken at the time of the grant of a mineral lease and at the time of the approval of a proposal. Rather, the focus is on the 'continued ability' of the relevant native title rights to exist or be enjoyed (at [1098]).

440    His Honour, having also considered the construction of s 44H of the Native Title Act, concluded:

[1110]    I accept … that, in the circumstances, the approvals of proposals do not affect native title to any greater extent than the grant of the initial mining lease in respect of which the Marillana State Agreement controls or regulates the location and rate of mining thereafter.

[1111]    While each proposal, when approved, crystallises the mining to be undertaken, in my view the existence or enjoyment of native title is not relevantly affected because it has already been affected to the same extent contended for by the grant of the mining lease.

441    An appeal from Barker J's decision did not disturb these findings: Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456.

442    Fourth, the Northern Territory submitted that s 4AB, being validating legislation, did no more than retrospectively validate an administrative act so it was to be treated as if the administrative decision was valid. The administrative acts related to mining rights that were already conferred by the mineral leases. The validating legislation attributed the consequences of legal validity to past acts: Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, in particular at 545-546 (Starke J) and 579-580 (Dixon J); and Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83 at [15].

443    In challenging the Northern Territory's position, the Claim Group focused on whether native title was affected by the authorisations, as validated by s 4AB. There is no doubt that the validation brought about by the enactment of s 4AB permitted the mine operator to undertake works on the area of the mineral leases that could not have been undertaken without approvals. However, from the time of the grant of the mineral leases, and in accordance with their terms, rights to mine were granted, restricted by approval processes. To my mind, focus on the effect of an approval of a method or expansion of a method of mining does not accord sufficient regard to the underlying extant rights to mine. The question viewed properly is whether s 4AB expanded or otherwise changed the nature of the rights to mine conferred by the grants of MLNs 1121-1126.

444    Although the enactment of s 4AB validated decisions that prescribed, defined or otherwise conditioned the manner of exercise of mining rights on the lease areas, it does not follow that such rights were thereby expanded, or that the Claim Group's native title rights were thereby diminished or affected. The underlying rights granted to MIM to enter on and use the leased areas to mine arose from the mineral leases, and there is no question that such rights may impair or diminish the exercise of subsisting native title rights from the time of their grant. So much is reflected in the Northern Territory's concession that the grants of the mineral leases were acts that constituted acquisitions of property.

445    It follows that I accept the Northern Territory's submission that, having regard to the useful (although incomplete) analogy provided by Banjima, the rights granted to MIM by the validation and authorisations given effect by the enactment of s 4AB did not bring about an acquisition of property within the inclusive definition in s 4B(6).

446    Mining rights were already granted over the lease areas, rights which extended to use of the land for processing, treatment, extraction, concentration of ore, cutting and sinking for water and other purposes in connection with the Project. There were no specified restrictions as to mining method. I note the High Court's observation in Ward HC at [308] that phrases such as 'mining purposes' or 'mining operations' have generally been interpreted broadly. Importantly, however, the exercise of mining rights was initially subject to contractual approval requirements and later statutory approval requirements. Variations of mining plans were anticipated by the mineral leases. The authorisations and mining management plans, as validated by s 4AB, to adopt the language of Banjima, did not affect native title to any greater extent than the grants of the mineral leases. Rather, they crystallised the mining to be undertaken on the lease areas.

447    Finally, I note that the Claim Group also placed weight on a statement about s 4AB 'altering rights' in the Court of Appeal's decision in McArthur River Mining Pty Ltd v Lansen. The Court of Appeal heard the appeal from the decision in Lansen that had declared the Minister's decision relating to open-cut mining authorisation invalid. The appeal, by way of re-hearing, obliged the Court to have regard to the facts before it and the law as it existed at the time of its decision. That is, it was obliged to have regard to the intervening enactment of s 4AB of the Project Act. In that context the Court of Appeal said (Martin CJ, Riley and Southwood JJ agreeing, at [12]):

In my view the legislature has plainly evinced an intention to set aside the result of the litigation and to alter the rights of the parties to the benefit of the appellant and to the detriment of the first to seventh respondents. This Court must determine the rights of the parties in accordance with the facts before this Court and in accordance with the law today as it governs those rights.

448    I do not consider the Court of Appeal's reference to altering the rights of the parties was intended to do any more than acknowledge that the validating Act changed the outcome of the litigation so that the invalid authorisation purportedly granted to MRM was deemed to be valid by Parliament. Clearly that was a decision in MRM's favour and brought about by Parliament. The Court of Appeal was not purporting to analyse particular rights or interests granted or effected by the respective mineral leases, invalid authorisations and mining plans or the validation effected by s 4AB. Nor was it purporting to address native title rights. The meaning of the sentence in that context cannot properly be enhanced or extended as suggested by the Claim Group.

MLN 582 renewals

449    As to the renewals of MLN 582, the Claim Group similarly plead that they confer rights that are inconsistent with the enjoyment or exercise of native title rights, and the rights conferred by the renewals (if valid) prevail over the enjoyment or exercise of the native title rights to the extent of the inconsistency.

450    The Northern Territory admits that the renewals resulted in an acquisition of property from the Claim Group within the meaning of s 4B(6) of the Project Act, insofar as the Claim Group were subsequently deprived of the use of the surface of the land. It also contended that the acts of the renewals had no greater effect on native title than rights or interests historically granted over the subject land, including by the grant of PPL 1051.

451    MLN 582 is over the site of the 'Reward' lead prospect, which has not been developed. It is some 4.5 km to the west of MLNs 1121-1125 and some 13 km west of the main mining area. There was no evidence that MIM has carried out any activities on the area of MLN 582. There was no evidence that MIM had exercised any rights in a manner which is inconsistent with native title. Although there was a suggestion that there may have been some fencing at some point, there was no evidence of impact or impairment in relation to the exercise or enjoyment of native title rights.

452    The mineral lease was originally granted in 1958 and has been renewed on some three occasions (1979, 2000 and 2020). The 2020 renewal is due to expire on 31 December 2040. Expenditure and annual reports have been provided to the Minister. Extracts from annual reports and technical reports over the period 2012 to 2021 were in evidence, and they disclosed that no drilling or exploration has been conducted on MLN 582 but that 'the area will continue to be utilised for mining operations'. What is meant by that phrase is not explained. The Northern Territory submitted that despite its conditional admission there has been no acquisition of property within the meaning of s 4B(6)(b) of the Project Act because there has been no suggestion that the surface of the land has been disturbed or that MIM has exercised its rights under MLN 582 in a manner inconsistent with native title.

453    Factual evidence of historical use of a leased area is not decisive in this context. As observed in Banjima at [1098], it is not necessary to point to relevant conduct at the time of an act in question to establish any conflict or inconsistency between rights granted under that act and native title rights – the focus need not be on 'instant conflict' but rather on the continued ability of a native title holder to exercise and enjoy rights after the act. This approach recognises that (for example) conduct pursuant to the provisions of a renewed lease might be undertaken at some point during its term.

454    Whilst in Banjima Barker J was considering s 227 of the Native Title Act and whether acts might be relevantly inconsistent with native title rights, rather than diminishing them, there is little to distinguish those terms in this particular context, and I would follow Barker J's approach (see generally Banjima at [1095]-[1098]). Whilst an inconsistency might not always connote an impairment or diminution, objectively, and in the context of competing interests, it can be assumed that it will frequently do so.

455    The Claim Group did not explore the impact of the subsisting risk of inconsistency or diminution on the enjoyment or exercise of their rights. However, the fact that MIM has maintained that it will continue to use the area for mining operations cannot be ignored. Use for mining operations on its face would extend beyond rights of access or grazing that might have previously been exercised under the pastoral lease. Further, the Northern Territory admitted in its pleading that MIM had occupied and used the area, although the extent of use was unknown.

456    Although the matter is not without difficulty, in those circumstances, and having regard to the subsisting rights in favour of MIM affected by the renewals, I am prepared to accept in the Claim Group's favour that the grant of the MLN 582 renewals effected an acquisition of property within the meaning of the Project Act.

Dredge spoil non-pastoral use permits

457    As to the non-pastoral use permits, the pleaded basis for the claimed acquisition of property is similarly the conferral of prevailing inconsistent rights.

458    The Northern Territory pleads that the grant of the non-pastoral use permits had no greater effect on native title than rights or interests historically granted over the renewal areas, including the grant of PPL 1051.

459    This requires a comparison of rights granted to MIM under PPL 1051 and under the non-pastoral use permits.

460    I have set out above the meaning of 'pastoral purposes'. I have also referred to the purpose of the grant of the non-pastoral use permits (described variously in the non-pastoral use permits as 'disposal of dredged spoil', 'the continued operation and management of dredged spoil ponds' or 'the continued management of dredge spoil ponds').

461    In contrast to the position with MLNs 1121-1126, where approvals were required but in relation to methodologies captured by the overarching grants of rights to mine, PPL 1051 permitted use for defined purposes that clearly did not capture non-pastoral use.

462    If a pastoral lessee sought to use the area of a pastoral lease for a non-pastoral purpose, they were obliged to apply for a permit under the Pastoral Land Act. That process has already been described.

463    Therefore, I accept the Claim Group's submission that the grants had an acquisitive effect. It can readily be inferred that the use permitted by the non-pastoral use permits would (at least) impact the surface area of the subject land in a manner beyond the permitted pastoral use. It can be inferred from the nature of the rights granted by the non-pastoral use permits that their grant diminished the Claim Group's native title rights. At minimum, whilst the pre-existing pastoral lease may have brought about some change to the manner in which the native title holders could exercise their non-exclusive access rights, the nature of the non-pastoral use permits imposed additional limitations on such exercise.

464    Separately, it is to be recalled that the Northern Territory accepts liability for the three pre-1996 non-pastoral use permits under the alternative Native Title Act compensation claim (by its further amended defence). It accepts such acts are compensable intermediate acts attributable to it in accordance with s 22G of the Native Title Act and that the Claim Group may recover compensation from the Northern Territory in relation to those acts. The Claim Group did not press any claim under the Native Title Act in relation to the post-1996 non-pastoral use permits.

Road

465    The Northern Territory was obliged by the Project Agreement to construct and maintain the Road connecting the mine and the port. The Road was built in part by upgrading pre-existing public roads constructed by the Commonwealth, being the Old Bing Bong Road and parts of the Carpentaria Highway (constructed in approximately 1963 and 1966 respectively). Native title over those public roads and adjacent road reserve had already been extinguished when their construction began (as previous exclusive possession acts by the Commonwealth within the meaning of s 23B(7) of the Native Title Act, s 23C(2) as to extinguishment and s 251D as to adjacent areas). The Claim Group did not contend otherwise.

466    However, parts of the Road were new, referred to in the Northern Territory's pleaded case as Deviations. The Northern Territory accepted these Deviations resulted in an acquisition of property. The factual issue is the extent of the area covered by the Deviations.

467    It is convenient to resolve that issue at this point.

468    The Northern Territory relied upon and accepted the affidavit evidence of Stewart Pittard tendered by the Claim Group. Mr Pittard is a cartographer with a Bachelor of Environmental Science. Mr Pittard prepared a series of maps relating to the historic Bing Bong Road and Carpentaria Highway and the current Road. He referred to parts of the Road relevantly as the Bing Bong Port Road and the Mine-Port Road. As his evidence is not disputed, it is not necessary to set it out in detail. It is sufficient to say that by a scientific process of reviewing historical maps, and georeferencing them by way of coordinate reference systems, Mr Pittard was able to overlay the relevant parts of the current path of the Bing Bong Port Road and Mine-Port Road against historic maps in order to ascertain the areas of four major and some minor deviations from earlier road corridors.

469    Mr Pittard found that the total estimated area comprising the Deviations is approximately 2.44 km² (244 ha). I accept Mr Pittard's evidence, and it follows that the extent of the area over which the Road effected an acquisition of property is 244 ha.

Pipeline Licence

470    The Pipeline Licence was granted by the Minister to NT Gas Pty Ltd for a period of 21 years from 10 May 1994. It remained in place until May 2015, on the grant of a further licence to a third party.

471    The pipeline totals 332 km in length and runs for approximately 50.75 km within the external boundaries of PPL 1051, crossing the Carpentaria Highway in three locations. The Northern Territory calculated that the area of the Pipeline Licence that crossed the Road where native title interests had already been extinguished was 0.9 ha. Accordingly, I proceed on the basis that the compensable area is 111.2 ha (the area stated by Mr Copland in his report) less 0.9 ha, a total I will round for convenience to 110 ha.

472    The Claim Group refers to the clearing of land covered by and adjacent to the pipeline and adjacent fencing, and pleads that the grant of the Pipeline Licence conferred inconsistent rights that prevail over the native title rights and prevent the enjoyment or exercise of such rights to the extent of the inconsistency.

473    The Northern Territory denies that the grant of the Pipeline Licence effected any acquisition of property for two reasons.

474    First, it asserts that as to the compensable area, the grant did not effect an acquisition because the licence conferred no rights to go onto and use the land, but merely relaxed the prohibitions in s 12(1) and (2) of the Energy Pipelines Act to construct and operate a pipeline, and had no greater effect on native title than PPL 1051.

475    In this regard the Northern Territory takes too narrow a view of the rights encompassed by the licence. It is necessary to consider the difference between rights granted under PPL 1051 and by the licence.

476    Section 12 of the Energy Pipelines Act provided that a person shall not commence or continue the construction of or operate a pipeline except pursuant to a licence. 'Pipeline' was defined in s 3(1) to mean:

… a pipe or system of pipes used or intended to be used for the conveyance of an energy-producing hydro-carbon, and includes:

(a)    all structures for protecting or supporting a pipeline; and

(b)    all loading terminals, works and buildings and all fittings, pumps, tanks, appurtenances and appliances, used in connection with a pipeline. …

477    Relevantly, the definition expressly excluded 'a pipeline … designed for use solely for the residential, business, agricultural, commercial or industrial purposes carried on that land and situated wholly within the boundaries of that land'.

478    Section 13 made provision for an application for a licence. The application was to include particulars of the design and construction, the manner of cathodic protection, the substance to be conveyed, the machinery and equipment involved, and of other matters such as the route and land to be used for access to the pipeline. Section 15 empowered the Minister to grant to the applicant a licence in respect of the proposed pipeline.

479    The Pipeline Licence describes the pipeline as 'the pipeline [that] commences at the existing piping connection for the future compressor at Daly Waters and terminates at the outlet flange at the perimeter fence enclosing McArthur River Power Station'. It was clearly not for usual pastoral purposes (as to which no permit would have been required).

480    The licence includes detailed requirements relating to coating systems, markings and fencing. It was intended to convey an energy-producing hydro-carbon which required physical protection and support. The objects of the Energy Pipelines Act and the terms of the licence indicate that the use of the land permitted by the licence was quite different to that permitted by PPL 1051.

481    I consider its grant further restricted access and use of the land in a manner at least partially inconsistent with the incidents of the non-exclusive native title access rights. In that sense there was a diminution of native title rights and an acquisition within the meaning of s 4B(6) of the Project Act.

482    Second, the Northern Territory asserted that in any event, if the grant did result in an acquisition of property, there is no entitlement to compensation because such acquisition was on terms that were just (s 4B(1) of the Project Act). It contends this follows from the compensation regime provided under s 59(2) of the Energy Pipelines Act (as in force at May 1994, emphasis added):

59    Pipelines to remain property of owner

(1)    Notwithstanding any Act or rule of law to the contrary, a pipeline constructed under the authority of this Act shall remain the property of the licensee or former licensee, as the case may be, or his assigns whether or not the pipeline is affixed to land and whether or not the licence granted in respect of the pipeline has been wholly or partly cancelled.

(2)    A licensee, in constructing, testing, maintaining or operating a pipeline in respect of which a licence is granted under this Act, shall do as little damage as is possible and shall make full compensation to the owner of and any party having an interest in land, for damage sustained by them in consequence of the exercise of a power by the licensee in constructing, testing, maintaining or operating the pipeline, and the compensation shall, in default of agreement between the licensee, the owner or other party, be determined by a court of competent jurisdiction.

483    It is apparent that s 59(2) imposed an obligation upon NT Gas Pty Ltd to pay compensation in certain circumstances.

484    The Northern Territory submitted that the Claim Group were entitled to claim compensation under the provision as 'a party having an interest in land'. It also submitted that 'damage' is to be understood broadly. Therefore, it submitted, as a right to compensation was available, any acquisition was on 'just terms'.

485    The Claim Group submitted that s 59(2) had no application to deny any right to compensation under the Project Act because it was concerned only with damage to land from an activity done in the construction and operation of the pipeline, rather than the effects on native title rights and interests which may arise from the grant. Accordingly, it did not provide 'just' terms for the acquisition effected by the grant of the Pipeline Licence.

486    Further, the Claim Group submitted that even if s 59(2) is relevant, NT Gas Pty Ltd did not make 'full compensation' for the effect of the grant of the licence on native title rights and interests in the land as required by the provision. As a result, the Territory's liability to compensate under s 4B of the Project Act for the grant of the Pipeline Licence remains extant.

487    The question raised by the respective submissions is by no means straight-forward, and it received little analysis from the parties. In short, the question distils to whether the acquisition effected by the grant of the Pipeline Licence was on terms that were 'just' for the purpose of s 4B of the Project Act, because compensation was available to the Claim Group under the compensation regime in s 59(2) of the Energy Pipelines Act.

488    I gained some assistance from the Full Court reasons on a stated case in Congoo v Queensland [2014] FCAFC 9; (2014) 218 FCR 358 (North, Logan and Jagot JJ) (affirmed on appeal although the issue of just terms was not considered: Queensland v Congoo [2015] HCA 17; (2015) 256 CLR 239). In Congoo, the Bar-Barrum people claimed native title rights and interests in land the subject of certain military orders made under the National Security (General) Regulations 1939 (Cth). The majority found that the Commonwealth, in making the orders, acquired property from the Bar-Barrum people but that the acquisition was on just terms: at [75] (North and Logan JJ). The regulations included a compensation regime, which was broadly drafted.

489    The compensation regime is set out at [13] of the majority's reasons, but in summary it provided that any person who has suffered or suffers loss or damage by reason of anything done in pursuance of any identified regulations, or in pursuance of any order made under the regulations, in relation to any property in which they have a legal interests or any legal right, shall be paid such compensation as is determined by agreement, by making a claim to the Minister within a certain time. Compensation would then be assessed by a compensation board, with the power to approach a court of competent jurisdiction for a review of the assessment.

490    The Native Title Act did not apply in the particular circumstances, and extinguishment questions were determined in accordance with common law. But, relevantly, it was held that 'any person' who had suffered loss or damage included holders of native title rights and that the concept of market value of what was taken could be applied, such that just terms could be provided. The potential for the court to review compensation ensured just terms.

491    I accept that the Claim Group were a 'party having an interest in land' within the meaning of s 59(2) of the Energy Pipelines Act. On its face there are other similarities between the respective statutory provisions. Both Acts included a compensation regime, and both provided the potential for compensation to be determined by a court.

492    However, there are textual differences that distinguish them.

493    In Congoo, the subject of compensation extended broadly to include loss or damage caused by anything done under both the regulations (which would extend to the making of an order) and in pursuance of any order made under the regulations.

494    The text of s 59(2) of the Energy Pipelines Act is markedly different. It is directed at compensation by the grantee, rather than the entity which granted the licence, being the Northern Territory. The fact that the compensation obligation rests with a third party would not of itself deny just terms, but it focuses attention on the obligations of the grantee which arise once the grant is made and acted upon. It does not purport to extend to damage from the grant itself. It obliges the grantee to minimise damage 'in constructing, testing, maintaining or operating a pipeline'. It then obliges the grantee to pay compensation for any such damage – that is, damage connected to those activities. If the grantee undertook no work at all of that nature, for example, there would be no obligation on it to provide compensation.

495    Section 4B of the Project Act contemplates compensation for something broader. It contemplates (to paraphrase) compensation from the Territory to the extent that the legislative or administrative act of the grant of the Pipeline Licence results in the diminution of the Claim Group's native title rights and interests in the land or any effect on such interest.

496    Depending upon the nature and scope of any compensation agreed with the grantee under s 59(2) of the Energy Pipelines Act, it is possible that it might have contributed to compensating the Claim Group for the effects of an act that interfered with or was inconsistent with native title rights and interests insofar as cultural loss is concerned. That possibility is, however, speculative.

497    No compensation was sought or received in this case and regardless, there would remain a broader entitlement to compensation from the Northern Territory than that anticipated by s 59(2).

498    Having regard to the identified activities and the identified damage to be guarded against or compensated for, I do not consider the text of the provision supports the Northern Territory's construction. The obligations on the grantee are not directed at compensation for the diminution in native title rights and interests as a result of the grant. Noting the text of s 4B, to that extent the s 59(2) compensation regime does not afford just terms and the Northern Territory remains liable under s 4B to pay compensation sufficient to remedy the injustice.

Summary of findings

499    Pulling together the various strands from Parts G, H and I, the findings in relation to liability for the compensable acts may be summarised as follows:

PART J – COMPENSATION – GENERAL

Starting point is the statutory scheme

500    Any entitlement to compensation and the heads under which it can be assessed depends upon the nature of the statutory scheme. I have considered the meaning and effect of the provisions having regard to the conventional principles of statutory construction set out in Part H (at [374]-[378]).

501    In this case, the starting point is the Project Act.

502    Under the Project Act, the Claim Group is entitled to compensation for an acquisition of property otherwise than on just terms, which includes the extinguishment or diminution of an interest or right in relation to land, or an effect on such interests referred to in (relevantly) s 174B of the Mining Act.

503    Under s 51 of the Native Title Act, an applicant is entitled to compensation on just terms for any loss, diminution, impairment or other effect on their native title rights and interests. The Northern Territory accepts that s 51 of the Native Title Act creates a relevantly analogous entitlement to compensation. Both schemes are concerned with compensation that is 'just' – whether it be expressed as compensation on just terms or on terms that 'remedy the injustice'.

504    There are some distinguishing features. Section 51(4) of the Native Title Act provides that the Court may have regard to the principles or criteria set out in the Lands Acquisition Act 1987 (NT) when determining compensation. Section 51A of the Native Title Act provides a 'cap' on compensation. These features are not included in the Project Act.

505    I will return to these distinctions in the statutory schemes where relevant.

Introduction to Griffiths HC

506    The next point is to acknowledge the significance of the reasons and outcome of Griffiths HC, the first occasion on which the High Court considered compensation for acts which partially or completely extinguished native title rights and interests under the Native Title Act.

507    In Griffiths HC, native title holders claimed compensation under Pt 2 of the Native Title Act with respect to compensable acts affecting native title rights over a 127-ha area of Timber Creek in the Northern Territory. The trial judge found that the rights and interests affected by the compensable acts were non-exclusive and included the right to travel, hunt, gather resources and engage in cultural activities over the application area (similar to the native rights and interests in the present case).

508    The High Court confirmed that an assessment of compensation having regard to the terms of s 51(1) of the Native Title Act must take into account both the economic and the non-economic value of the native title rights and interests: the plurality (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) at [44]-[46], [84]. Such a bifurcated approach was said to be appropriate and consistent with the conventional manner of assessing compensation for the infringement of common law land rights and interests: at [84].

509    Economic loss reflects the loss of capacity to use land. The objective economic value of exclusive native title rights and interests, in general, equates to the objective economic value of the unencumbered freehold estate in the land: at [3]. Where the rights and interests are non-exclusive, their value may be discounted by comparison with full exclusive native title, and the same percentage reduction applied to the freehold value: at [91].

510    The plurality and each of Gageler J and Edelman J, both writing separately, concluded that the value of the non-exclusive native title rights for the purpose of an assessment of compensation was 50% of the freehold value of the land: at [3], [106], [250], [301]-[303]. The trial judge had assessed their value at 80% of the unencumbered freehold value, and the Full Court had varied that figure to 65% of the unencumbered freehold value: Northern Territory of Australia v Griffiths [2017] FCAFC 106; (2017) 256 FCR 478 (Griffiths FC) at [139]. Although concurring in the percentage value of 50%, there were some differences in views between the plurality and each of Gageler J and Edelman J as to the method of valuing economic (or exchange) loss, as addressed below.

511    It was accepted by the High Court that interest was payable on the compensation for economic loss: at [3]. Interest was payable from the date of the compensable act and does not form part of the compensation: at [43], [150]-[151].

512    Non-economic loss, or 'cultural loss', reflects the loss of cultural connection to the land. 'Cultural loss' was the preferred term utilised by the High Court to encompass loss or diminution of traditional attachment to the land or connection to country, and for loss of rights to gain spiritual sustenance from the land: at [3], [154], [187]. It reflects the reference in the Native Title Act to the statutory definition of native title (s 223), which includes connection with the land by reason of traditional laws and customs.

513    The plurality stated that compensation for such loss or diminution is 'the amount which society would rightly regard as an appropriate award for the loss': at [3]. The trial judge had assessed compensation for such loss at $1.3m as at the date of judgment, observing that it was not a matter of science or of mathematical calculation: Griffiths TJ at [383]-[384]. It followed that no question of interest on that sum arose.

514    Neither the Full Court nor the High Court disturbed that assessment or the date of assessment (noting Edelman J agreed in the result but said it was wrong to assess compensation for cultural loss at the date of judgment rather than the date of the compensable acts: at [253]-[254], [315], [318]-[325]).

515    The High Court's approach to the valuation methodology is addressed more fully below.

Claimed heads of loss

516    Some matters were agreed between the parties.

517    Consistent with Griffiths HC, the parties in this case agreed that compensation is to be assessed having regard to economic loss, interest on economic loss and cultural loss.

518    It was also accepted, citing Griffiths HC at [84], that the valuation approach to the assessment of just compensation should proceed according to the bifurcated approach of first determining the economic value of the native title rights and interests that had been lost or diminished, and then estimating the cultural loss occasioned by the consequent diminution in the Claim Group's connection to country.

Time of assessment

519    The parties were largely in agreement as to the date of assessment of loss. In their points of claim on quantum, the Claim Group pleaded that the date for the assessment of the compensation is the date of the compensable act. Therefore, according to the Claim Group, for MLNs 1121-1126, economic loss is to be assessed at 30 June 1993, being the date of their validation and re-grant (it being unlikely that there would have been any substantive change in the value of the rights between the grant date in January 1993 and the re-grant date in June 1993).

520    The Northern Territory generally agreed with this approach, stating that other than for the Road, the date of each compensable act is the date of grant; and in relation to the Road, the date is the date of construction.

521    As to cultural loss, the Claim Group claimed that, subject to an election prior to trial, compensation was to be assessed at the date of the compensable acts, with allowance for pre-judgment interest reckoned on assessed cultural loss; or at the date of judgment, with no allowance for pre-judgment interest.

522    The Northern Territory admitted that cultural loss may be assessed on either of those dates, as did the Commonwealth intervening.

523    The Claim Group elected in their written submissions to have compensation for cultural loss assessed at the date of judgment. The Northern Territory agreed that it was appropriate in this case that cultural loss should be assessed at the time of judgment, with no pre-judgment interest payable on that component. The assessment of cultural loss therefore has proceeded on that basis.

524    Having regard to the agreed position of the parties and its consistency with the approach of the trial judge in Griffiths TJ, undisturbed by the Full Court or High Court (Edelman J in dissent on this point), I will proceed on the basis that compensation for cultural loss is assessed at the date of judgment.

PART K – COMPENSATION FOR ECONOMIC LOSS

Summary of Claim Group's alternative cases

525    The Claim Group ran what they called a primary and an alternative case.

526    The primary case, which is limited to MLNs 1121-1126, is that economic loss is measured by the loss of what the Claim Group could fairly and justly have demanded, in a hypothetical voluntary bargain, for their assent to the infringement of their native title rights by the grant of the mineral leases. Accordingly, a hypothetical voluntary bargain might be, for example, a revenue sharing arrangement negotiated between the Claim Group and the Northern Territory. The Claim Group described this variously as a hypothetical comparable bargain, hypothetical consensual bargain or hypothetical voluntary bargain case.

527    The Claim Group submitted that this properly reflects the measure of economic loss under s 4B of the Project Act. They made no separate claim for economic loss for later compensable acts because on their case the hypothetical comparable bargain is taken to occur upon the grant of MLNs 1121-1126 under the Project Agreement, which makes provision for other later acts, and there was, at that time, the uncertain but known possibility of open-cut mining occurring.

528    Whilst this was not the basis upon which economic loss was assessed in Griffiths HC, the Claim Group contended that the hypothetical comparable bargain method adapts conventional tools of economic valuation (citing Griffiths HC at [66], [76]) and is appropriate.

529    The Claim Group did not tender evidence of alleged comparable bargains (other than in a limited manner and as addressed with Mr Houston, to which I will return). The Claim Group did not provide a calculation of the quantum of their claim for economic loss assessed on the hypothetical comparable bargain basis. They contended that if I agreed that this was the appropriate method of valuation, then they would apply for a referral to a referee for inquiry and report under s 54A of the Federal Court of Australia Act 1976 (Cth).

530    It is true that the Claim Group foreshadowed an application for a reference in their points of claim. However, it was not something apparently pursued at the time before the case management judge, and no directions were sought at any time as to important issues such as the scope of the reference, the evidence to be relied upon, the identity of a proposed referee, the questions that might be asked of them or the proposed nature of their powers. I will return to these procedural issues.

531    The Claim Group's alternative case measures loss by reference to the value of a hypothetical freehold estate in the land as a proxy for the economic value of the full exclusive native title, discounted to reflect the limitations of the non-exclusive native title rights in issue. That is essentially an adapted Spencer test, being the methodology used by the High Court in Griffiths HC, albeit there are certain textual and factual differences to be taken into account.

532    The Northern Territory disputes the hypothetical comparable bargain case. It says Griffiths HC is inconsistent with such a case, both as it relates to the Native Title Act and the Project Act. It says that by reason of Griffiths HC, measurement by comparison with freehold value is binding to the limited extent that the Claim Group claim compensation under the Native Title Act, and there is no reason why the same approach should not also be applicable to the Project Act.

533    It submitted that the hypothetical comparable bargain case assumes compensation is payable for the loss of an opportunity to negotiate or bargain by way of statutory processes, and that such an assumption is wrong, because it is not what compensation under s 4B of the Project Act is for. Compensation is for an acquisition of property, defined by s 4B(6) as 'extinguishment or diminution of an interest in or right in relation to land, and any effect on such an interest or right'.

534    The Commonwealth intervening also submitted that the hypothetical comparable bargain approach is fundamentally incompatible with the purpose of compensation under the Native Title Act and that nothing in Griffiths HC suggests otherwise.

The approach to economic loss in Griffiths HC

535    The trial judge and the Full Court in Griffiths both adopted the comparison with freehold approach to valuing economic loss. For this approach the full freehold value of the land is considered as a proxy for exclusive native title over the relevant area, and then discounted to take into account the limitations and restrictions arising from the non-exclusivity of the native title rights.

536    In their joint judgment, the plurality in Griffiths HC also adopted the comparison with freehold method, summarising their endorsed approach at [91]:

Consistently with the aim of the Native Title Act that the economic value of full exclusive native title in land be equated to the economic value of a freehold title in that land, the economic value of non-exclusive native title in land falls to be determined by making an evaluative judgment of the percentage reduction from full exclusive native title which properly represents the comparative limitations on the non-exclusive title relative to a full exclusive native title and then applying that percentage reduction to the economic value of a freehold estate in the land as proxy for the economic value of a full exclusive native title in the land.

537    The first step for such an approach is to identify the nature of the non-exclusive rights and interests, so a sensible contrast can be drawn with full exclusive rights. This accords with the exercise at common law of comparing an estate in fee simple, which ordinarily has the greatest economic value, with lesser estates which have lesser rights, lesser control and generally lesser economic value: at [67]-[68], [75]-[76].

538    Having identified the incidents of those rights and interests, deciding on the percentage reduction from full exclusive native title is an evaluative judgment, which necessitates making a fairly broad-brush estimate: at [70], [87].

539    Another step is to acknowledge the s 51A 'cap' on compensation payable to native title holders under the Native Title Act. However, whilst s 51 and s 51A apply a cap which is linked to freehold value, the cap does not limit compensation for cultural loss. The plurality said (at [54]):

What the Native Title Act requires to be compensated is the cultural loss arising on and from the extinguishment of native title rights and interests. Given that the Native Title Act is a Commonwealth Act which, under Div 5, equates native title rights and interests to freehold for the purposes of dealing with native title, and is intended to provide compensation for the extinguishment of those rights and interests on just terms to all native title holders affected by a compensable act, ss 51 and 51A are to be read as providing that the compensation payable to the native title holders is to be measured by reference to, and capped at, the freehold value of the land together with compensation for cultural loss. Principles or criteria set out in a compulsory acquisition law for the Commonwealth, or for the State or Territory to which the compensable act is attributable, may be of assistance but they are not determinative of the issues arising under s 51(1).

540    The plurality then confirmed that the economic value of the native title rights should be determined by application of an adapted Spencer test (at [66]):

In this Court, all parties accepted that the economic value of the native title rights and interests should be determined by application of conventional economic principles and tools of analysis, and, in particular, by application of the Spencer test adapted as necessary to accommodate the unique character of native title rights and interests and the statutory context. The difference between the parties was as to how the Spencer test should be applied.

541    The Spencer test is the recognised shorthand for the valuation approach enunciated by Griffith CJ in Spencer v The Commonwealth of Australia (1907) 5 CLR 418 at 432:

the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?'

542    In other words, the Spencer test asks what price a willing but not anxious purchaser would pay to a willing but not anxious vendor in a hypothetical transaction. It is a conventional method of valuation but 'not a mandated legal rule': Griffiths HC at [275] (Edelman J).

543    The plurality, under the heading 'Bifurcated approach to valuation', described the approach to valuing compensation as follows (emphasis added, citations omitted):

[84]    … Just as compensation for the infringement of common law land title rights and interests is ordinarily comprised of both a component for the objective or economic effects of the infringement (being, in effect, the sum which a willing but not anxious purchaser would be prepared to pay to a willing but not anxious vendor to achieve the latter's assent to the infringement [footnoting Spencer]) and a subjective or non-economic component (perhaps the most common instance of which is an allowance for special value), the equality of treatment mandated by s 10(1) of the Racial Discrimination Act, as reflected in s 51 of the Native Title Act, necessitates that the assessment of just compensation for the infringement of native title rights and interests in land include both a component for the objective or economic effects of the infringement (being, in effect, the sum which a willing but not anxious purchaser would have been prepared to pay to a willing but not anxious vendor to obtain the latter's assent to the infringement, or, to put it another way, what the Claim Group could fairly and justly have demanded for their assent to the infringement) and a component for non-economic or cultural loss (being a fair and just assessment, in monetary terms, of the sense of loss of connection to country suffered by the Claim Group by reason of the infringement).

[85]    Admittedly, there is a degree of artificiality about applying an adapted Spencer test in circumstances where it may be assumed that the Claim Group would not have been at all interested in selling their native title rights and interests and it is plain that no one could lawfully have bought them. But, at the same time, the native title rights and interests unquestionably existed and they had a recognisable economic worth which lay in the sum that might fairly and justly have been demanded for their lawful extinction in favour of the Crown. In those circumstances, it is no more artificial to seek to assess their economic value by means of the Spencer test of what a willing but not anxious purchaser would have been prepared to pay to a willing but not anxious vendor in order to buy them (or, more accurately, to obtain the latter's assent to their extinguishment) than it is to apply the Spencer test to the assessment of just compensation for the compulsory extinguishment of, say, a general law easement or profit à prendre.

[86]    At one point in the Full Court's reasons, their Honours reflected as to whether it might have been preferable to approach the assessment task on an 'holistic' basis without the division of value into economic and non-economic components. Their Honours were correct to avoid that approach. There may be exceptions, but ordinarily the only way of achieving the degree of precision envisaged by s 51A of the Native Title Act – which, as has been seen, stipulates that the total compensation payable for an act which extinguishes native title must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters – is by the determination of economic value according to established precepts for the valuation of interests in land. Given that there is no range of decided comparable cases such as those which may be called in aid, for example, in sentencing or when fixing damages for personal injuries, an holistic approach would mean that the determination of the economic value of native title rights and interests would be largely dependent on idiosyncratic notions of what is fair and just.

544    In summary, the plurality in Griffiths HC accepted that the Spencer test requires the assessment of compensation for economic loss to result from a two-sided hypothetical transaction for the extinguishment (wholly or in part) of native title rights and interests. In its adaptation, the hypothetical seller is the native title holders. The hypothetical buyer is the Northern Territory. The subject of the transaction, being the native title rights and interests, has an economic value to both the hypothetical seller and the hypothetical buyer.

545    The reasons provide assistance on other particular aspects of the valuation task. For example, the plurality held that inalienability of native title is irrelevant to the assessment of economic value for the purpose of s 51 of the Native Title Act: at [101].

546    Certainly a theme considered in the decisions of each of the trial judge, the Full Court and High Court in the application of an adapted Spencer test was the extent to which the value to the Northern Territory of acquiring rights and interests and so extinguishing native title was relevant to the assessment of value of those rights.

547    The Full Court, citing Latham CJ in The Commonwealth v Reeve (1949) 78 CLR 410 at 418, held that the primary judge erred in taking into account the economic value to the Northern Territory of achieving such extinguishment: Griffiths FC at [89]-[91]. It concluded that an allowance for the benefit of the acquisition was not available on a proper assessment and was prone to inflate the figure for compensation: at [92]. However, the High Court plurality said (emphasis added, citations omitted):

[104]    It is not clear that the trial judge made that error. It may be that all his Honour had in mind was that, as with the economic value of any other encumbrance, the economic value of native title rights and interests accords to what a willing but not anxious purchaser is prepared to pay to a willing but not anxious vendor to obtain the latter's assent to their extinguishment. But either way, the benefit of extinguishment to the Northern Territory was relevant only in so far as it would have informed the amount that the Northern Territory, as the sole, hypothetical willing purchaser, would have been prepared to pay for the consensual extinguishment of the native title rights and interests.

548    The Claim Group contended, and the Northern Territory and the Commonwealth disputed, that this reasoning implicitly recognises that the Pointe Gourde principle does not apply in assessing the economic value of native title rights. I deal with this later in these reasons.

549    The plurality in Griffiths HC also rejected specific alternative valuation methods. For example, it rejected a method proposed by Mr Lonergan (expert witness called by the Northern Territory) that in effect valued not the economic value of the native title rights and interests in the subject land as required by the Native Title Act, but rather what the Claim Group might have been prepared to pay to acquire other land on which they might have exercised their native title rights and interests: at [88]-[91], [94]. In particular, the plurality said (at [89]):

As will be apparent, the principal difficulty with Mr Lonergan's thesis is that what it purports to value is not the economic value of the native title rights and interests in the subject land as required by the Native Title Act, but rather what the Claim Group might have been prepared to pay to acquire other land at a different location on which they might have lived and behaved in much the same way that they had been entitled to live and behave in the exercise of their native title rights and interests in the subject land.

550    Importantly, the plurality also emphasised the importance of a pragmatic approach to valuation, stating (at [92]):

There is, too, a further, pragmatic reason to eschew the sort of approach favoured by Mr Lonergan. An opinion of the kind that the Northern Territory commissioned Mr Lonergan to produce is a complex and expensive exercise, and, as experience shows in litigation, where one party introduces an expert report of that complexity and expense it more often than not leads to another party commissioning another expert to produce a similarly complex and expensive report to rebut the thrust of the first, leaving it to a trial judge, often after extensive cross-examination of both experts at further considerable cost, to decide between the two. That degree of complexity and cost can be avoided if economic value is determined by the comparatively simple and relatively thrifty means of assessing the freehold value of the subject land and applying the appropriate percentage discount according to the nature of the native title rights and interests in suit. Given the presumably limited resources of most native title claimants, such simplicity and economy is surely to be encouraged.

551    Applying the endorsed method, the plurality considered that the trial judge's estimate of the economic value of non-exclusive native title and interests as 80% of the freehold value of land was manifestly excessive, as was the Full Court's estimate of 65%, so as to bespeak error of principle. They reduced the value of the native title rights and interests compared to freehold to 50%, stating (at [106], citations omitted):

Given the Claim Group's native title rights and interests were essentially usufructuary, ceremonial and non-exclusive, without power to prevent other persons entering or using the land or to confer permission on other persons to enter and use the land, without right to grant co-existing rights and interests in the land, and without right to exploit the land for commercial purposes, the trial judge's estimate of the economic value of the native title rights and interests as 80 per cent of the freehold value of the land was manifestly excessive. But so, too, with great respect, was the Full Court's estimate of 65 per cent. Granted, the determination of the appropriate percentage calls for an evaluative judgment about which reasonable minds might sometimes differ. But here, given the native title was devoid of rights of admission, exclusion and commercial exploitation, a correct application of principle dictates on any reasonable view of the matter that those non-exclusive native title rights and interests, expressed as a percentage of freehold value, could certainly have been no more than 50 per cent.

552    Before returning to this case, I note that Edelman J, writing separately, agreed with the joint judgment but differed in the approach to Spencer. His Honour emphasised that both the trial judge and the Full Court had accepted the claim group were not willing to surrender their rights. As the Spencer test pre-supposes a willing seller, the Spencer test must be further adapted. The appropriate approach was to focus only on the willing but not anxious purchaser, that is, the price the Northern Territory would reasonably pay to obtain a surrender of the native title rights: at [277]-[284].

553    Justice Gageler, writing separately, preferred a method of discounting from freehold value indicated by Mr Lonergan that recognised both a usage and negotiation value, although observed that on the facts the outcome would have been no different: at [241]-[250]. Subject to this qualification, his Honour also approved the application of an adaptation of the Spencer test and agreed with the reasoning in the joint judgment: at [240], [245].

The approach in this case

554    Griffiths HC does not purport to address the many valuation issues that might arise depending upon the circumstance of a particular case. Writing extra-curially when a judge of this Court, Justice Jagot identified a number of issues that will remain to be addressed over time as the jurisprudence relating to compensation claims develops: 'Compensation for Economic Loss' (2022) 96 ALJ 832 at 832-836. Justice Jagot referred to the common law's ready acceptance that valuation must accommodate a lack of certainty (at 837), citing the observation in Electricity Commission of New South Wales v Arrow (1994) 85 LGERA 418, that (at 419, citations omitted):

Valuation is not a science. It is an imprecise, opinionative activity involving the consideration of many variables, sometimes with equally legitimate outcomes.

555    It was not surprising, Justice Jagot observed, that the plurality of the High Court would reason by analogy with other forms of compensation, statutory and otherwise, when assessing the approach for calculating economic loss required by s 51(1) of the Native Title Act, and choose to adapt the fundamental principle of market value established in Spencer, with its two-sided notional bargain, such notional bargain being 'now deeply rooted in common law psyches', and its hypothetical nature meaning it is 'infinitely adaptable' (at 838). Justice Jagot then set out a number of indicia from Griffiths HC that point to the plurality applying an orthodox approach to the valuation of land and interests in land: the identification of the date of assessment; the identification of the nature of the affected native title rights and interests; the bifurcation into economic and non-economic loss; and confirmation that compensation is to be assessed by reference to the potentialities of use of the land or interest in land at the acquisition date and not its actual use (at 839, 842).

556    At a general level, it can be accepted that different valuation methods could be applied in the context of compensation for loss or diminution of native title rights and interests. As stated in Bronzel v State Planning Authority (1979) 21 SASR 513 at 516 (Wells J) the court should be slow to reject any valuation method that yields an assessment of compensation within reasonable bounds (cited by Callinan J in Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 167 ALR 575 at [283]).

557    As a trial judge determining this application, it is appropriate that I apply by analogy the reasoning of the Full Court (where unchallenged) and the High Court in the Griffiths decisions, despite the fact that this application concerns the Project Act. I have foreshadowed minor textual distinctions. There are also other factual distinctions that I must consider.

558    However, the purpose and objects of s 4B of the Project Act (insofar as native title rights and interests are concerned) and s 51 of the Native Title Act are so closely aligned that there should be a real and substantial point of distinction before I would consider it appropriate to embrace a different valuation methodology. Fundamentally, both are seeking to address interference with native title rights and interests.

559    Compensation is concerned with and connected to a claimant's loss.

560    The meaning of 'compensation' was addressed by Dixon J in Nelungaloo at 571 as follows:

Now 'compensation' is a very well understood expression. It is true that its meaning has been developed in relation to the compulsory acquisition of land. But the purpose of compensation is the same, whether the property taken is real or personal. It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived. Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him.

561    The plurality in Griffiths HC cited this passage (at [87]).

562    As observed by Edelman J in Griffiths HC at [337], the term where used in s 51 of the Native Title Act 'is used … in its nearly universally accepted sense, which focuses upon the claimant', and is consistent with the approach to compensation for compulsory acquisition 'which focuses upon the effect on the owner' (citing relevantly Nelungaloo at 571 (Dixon J)). Edelman J continued (at [337], citations omitted):

This accords with the widely prevailing meaning of compensation adopted for decades in this Court. There are many authorities affirming that the role of compensation is to 'put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed'. As Mason CJ, Dawson, Toohey and Gaudron JJ said in Haines v Bendall, the concept of compensation was cognate with 'the rule, described by Lord Reid in Parry v Cleaver, as universal, that a plaintiff cannot recover more than he or she has lost'.

563    The entitlement to compensation under the Native Title Act is assessed according to the rights and interests that are lost or affected: Griffiths HC at [87]. Notably, the plurality rejected an alternative valuation methodology that purported to value something different (at [89], extracted at [549] above).

564    Section 4B of the Project Act provides for compensation when there is an acquisition of property other than on just terms. Compensation is 'to remedy the injustice' of the acquisition. It is the acquisition that s 4B seeks to address by obliging the Northern Territory to pay compensation. The acquisition is defined to include either the extinguishment or diminution of an interest or right in relation to land, or an effect on such an interest. It is such extinguishment, diminution or effect on the native title rights and interests that are compensable under s 4B.

565    Accordingly, 'compensation' and its purpose are analogous under both the Native Title Act and the Project Act and it is right to apply the Griffiths HC principles in this case.

566    The approach endorsed by the High Court in Griffiths HC is workable, based on orthodox principles and open to consistent application. The plurality's encouragement of the need for efficiency and simplicity in the approach to economic loss valuation (at [92]) in such native title compensation claims must be respected and embraced.

567    Consistency in an approach to compensation is also more likely to provide workable parameters for consensual negotiations, empowering and assisting claim groups and other parties to agree compensation without the uncertainty of expensive, divisive and time-consuming litigation.

568    It follows that I intend to assess economic loss having regard to the Claim Group's alternative argument. I will then return to their 'primary' case and further explain why I have declined to adopt it.

The extent of the non-exclusive native title rights

569    As the parties agreed that it was necessary to consider the nature of the native title rights and interests, I will commence with that exercise.

570    The parties agree that the native title rights and interests held by the Claim Group are those described in Part A above (at [44]). It is those rights and interests that may have been extinguished, diminished or affected by the compensable acts. The uses that are authorised by those rights and interests are determinative of their nature and so their economic value, and not what uses were in fact made of the land at the time of the compensable act (Griffiths HC at [81]).

571    This claim does not concern native title rights or interests that were exclusive. The claim area was the subject of pastoral leases prior to the time of the compensable acts.

572    Nor were the Claim Group's non-exclusive native title rights and interests permanently extinguished by the compensable acts (leaving aside parts of the Road). Rather, their diminution or impairment may have been partial, temporary, or effectively permanent, having regard to the nature of the rights, the geographic areas and the life of the mine.

573    A comparison of the description of the native title rights and interests of the claim group in the Griffiths line of cases, as set out by the High Court in Griffiths HC at [10], reveals that such rights and interests are common with those of the Claim Group in the present case. The only difference of substance is that in Griffiths, the claim group had the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters 'but not for commercial purposes'. The Claim Group in this case similarly may share or exchange resources obtained on or from the area, but following the decision in Top End, are not prevented from exercising their native title rights for a commercial or business purpose (noting again that it was accepted by the parties that the Claim Group have no native title interests in minerals).

574    Having regard to the largely analogous rights and entitlements, the following passages from Griffiths HC are relevant (footnotes omitted):

[68]    … Native title rights and interests are not the same as common law proprietary rights and interests but the common law's conception of property as comprised of a 'bundle of rights' is translatable to native title, and, as has been held, draws attention to the fact that, under traditional law and custom, some but not all native title rights and interests are capable of full or accurate expression as rights to control what others may do on or with the land. So, therefore, just as it is necessary to determine the nature and extent of common law proprietary rights and interests as a first step in their valuation, it is necessary to identify the native title rights and interests in question as the first step in their valuation.

[69]    As the trial judge found, the Claim Group's rights and interests were essentially usufructuary, ceremonial and non-exclusive. The Claim Group's rights and interests were perpetual and objectively valuable in that they entitled the Claim Group to live upon the land and exploit it for non-commercial purposes. But they were limited. As earlier mentioned, the historic grant of the pastoral leases extinguished the Claim Group's traditional right to control access to the land and to decide how the land should be used; and, once so extinguished, the right did not revive. Thereafter, the Claim Group had no entitlement to exclude others from entering onto the land and no right to control the conduct of others on the land. Nor did the Claim Group have the right to grant co-existing rights and interests in the land. And because the Claim Group's native title rights and interests were non-exclusive, it was also open to the Northern Territory to grant additional co-existent rights and interests in and over the land, including grazing licences, usufructuary licences of up to five years' duration and licences to take various things from the land.

575    Having regard to these matters and the Determination, in this case:

(a)    native title was non-exclusive;

(b)    the Claim Group had no right to determine who could come onto the land or make decisions about who and by whom the land and its resources could be used (Ward HC at [88]);

(c)    the native title rights were limited and essentially usufructuary (Griffiths HC at [69]);

(d)    the Claim Group could only be accompanied by non-native title holders on the land in limited circumstances but could not invite them to exploit the resources;

(e)    the Claim Group could not grant co-existing interests, for example, by leasing or mortgaging their interests;

(f)    because the rights were non-exclusive, the native title co-existed with other rights and interests. The exercise of such other rights prevailed over the native title rights, leaving native title vulnerable to the grant of other prevailing interests, such as miscellaneous licences or other mineral leases (Northern Territory of Australia v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 at [131]-[133]; and Griffiths HC plurality at [69], [79]-[80], Edelman J at [297]).

576    I note for completeness that in relation to the seaward area of MLN 1126 (700 ha), the native title rights to access and use the area and its resources also co-existed with public rights to navigate tidal waters or waters of the sea, and that rights to fish those waters may be granted under the Fisheries Act 1988 (NT).

577    Two relevant distinctions from the rights and interests the subject of Griffiths are apparent.

578    Under the Determination it was open to the Claim Group to be accompanied by others onto the land as required by traditional laws and customs, and so there was a limited right to allow others to enter (people required by traditional law and custom for the performance of ceremonies or cultural activities on the areas; people who have rights in relation to the areas according to the traditional laws and customs acknowledged by the estate group members; and people required by the estate group members to assist in, observe, or record traditional activities on the areas).

579    Further, the Determination recognised that the exercise of rights to use the natural resources of the land was not limited to domestic or traditional subsistence purposes, but could include commercial purposes. However, as the Commonwealth observed, that potential remains subject to limitations such as the limits on who may come onto the land, the fact that the native title holders cannot decide how the land is to be used or control access to the land and that such rights are subject to the lawful exercise by others of any granted rights: s 238 of the Native Title Act.

580    I accept, however, that for assessment purposes, other things being equal, those distinguishing features support an argument that the Claim Group's non-exclusive native title rights and interests are somewhat greater in scope than the non-exclusive rights in Griffiths.

Summary of the position of the parties on assessment

581    The Claim Group's position is that the exercise of comparison with the freehold valuation in Griffiths HC permits these distinctions to be taken into account. They submitted that their non-exclusive bundle of native title rights and interests should be valued at no less than 60% of exclusive native title, and so equivalent to no less than 60% of the freehold value of the claim area for which they contend. However, the Claim Group submitted that freehold value was to be assessed having regard to a hypothetical fee simple (which disregarded the reservation of minerals) and that further premiums were to be applied to the freehold valuation before the 60% adjustment was to be applied.

582    The Northern Territory submitted that this case required a greater discount to that applied in Griffiths. It submitted that if compensation were being assessed under the Native Title Act, then the starting point, citing Griffiths HC at [106], would be a 50% adjustment. It accepted this was also the appropriate starting point for compensation under the Project Act. However, it submitted that because there is no equivalent in the Project Act to s 51A of the Native Title Act, this Court should have regard to the inalienability of native title rights and interests, so that the starting point for compensation would not be 50% of freehold value, but no more than 25%. It said further discounts for predicted temporal and geographic limitations on the suppression of rights, assessed at the date of valuation, should be applied to that 25% base, culminating in a valuation of 5% to 10% of freehold value depending on the particular part of the claim area.

583    The Commonwealth intervening did not seek to be heard on an appropriate percentage reduction but proposed 'new' principles for determining economic loss if compensation were being determined under the Native Title Act. Consistent with the approach of Griffiths HC, it accepted there should be a percentage reduction to represent the comparative limitations of non-exclusive title as compared with full exclusive native title. However, it submitted there should be a further percentage reduction that reflects the extent of inconsistency between the compensable act and the enjoyment or exercise of the native title rights and interests. This second aspect appears to mandate a similar assessment to that required by the Northern Territory's submission on temporal and geographic limitations, but the Commonwealth proposed a more liberal approach to the use of evidence of events that post-date the compensable acts.

584    The issues these competing positions raise include:

(a)    whether there should be a discount for inalienability of native title rights where compensation is sought under the Project Act;

(b)    whether other discounts should be applied to the proposed compensation having regard to so-called temporal and geographic limitations, and the extent to which evidence of subsequent events might be called upon in that regard;

(c)    whether the freehold value is to be assessed on the basis of a hypothetical or actual freehold title;

(d)    what finding should be made as to the freehold value of the relevant claim area; and

(e)    whether any premiums are to be applied to such freehold value.

585    It is only after those matters are considered that an assessment of compensation for economic loss can be undertaken.

Whether discount for inalienability

586    It is to be recalled that in Griffiths FC, the Full Court reduced the trial judge's assessment that the native title rights were to be valued at 80% of the unencumbered freehold value to 65%.

587    The trial judge acknowledged that native title rights cannot be sold or transferred, and are not capable of alienation: Griffiths TJ at [211]. However, Mansfield J said (at [213]):

[213]    While [s 51(A)] sets an upper limit for the economic compensation representing the direct value of the estate or interest in land or waters which has been acquired by the Territory, it does not follow that the value of exclusive native title is necessarily less than that freehold value because it is not inalienable, and is not transferrable. Such an assumption would fail to have regard to the real character of native title held by Indigenous Australians. Indeed, in the case of exclusive native title rights, where they are lost, I see no reason why their value should not be taken as the equivalent of freehold value. That appears to have been the undebated premise in Geita Sebea [Geita Sebea v The Territory of Papua (1941) 67 CLR 544] and in Amodu Tijani [Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399].

[214]    Indeed, having regard to the express purposes of the NTA, and the recognition of the Aboriginal peoples as the original inhabitants of Australia, it would be erroneous to treat the nature of their original interests in land as other than the equivalent of freehold and the economic value of those interests as other than the equivalent of freehold interests.

588    His Honour accordingly commenced the comparative task by considering that the value of exclusive native title rights was equivalent to freehold value.

589    The Full Court also started from freehold value but said the trial judge had erred by not discounting that value because the title was inalienable (at [119], [122]). For a number of reasons, including the reference in [213] to the 'real character' of native title rights, the Full Court suggested that his Honour had wrongly taken into account both economic and non-economic elements in assessing economic loss. Further, it considered the Spencer test permitted reference to restrictions on a right to sell, citing relevantly Corrie v MacDermott (1914) 18 CLR 511 (at 514); [1914] AC 1056, where it was said that 'if … the old owner holds the property subject to restrictions, it is a necessary point of inquiry how far these restrictions affect the value'. The Full Court concluded that it was necessary to discount the value of the claim group's rights and interests because they were inalienable (at [115], [117]), 'although not necessarily significantly' (at [122]). The Full Court does not apparently rely on s 51A in its consideration of this issue. The Full Court's view that inalienability should be taken into account was one of the reasons it reduced the trial judge's assessment of value of native title rights and interests from 80% to 65% of freehold value.

590    The High Court rejected the Full Court's approach on inalienability of native title rights and interests, concluding that it was not a relevant discounting factor in the assessment of economic value. The plurality accepted that the alienation of a freehold estate is a relevant, although not always significant consideration in the determination of its economic value, and that the cases reflect a range of discounted values of between 10% and 80%, according to the extent of inalienability. The cited example where freehold land was wholly inalienable resulted in the lowest discounted value, being 10%: at [100].

591    However, as to the valuation of native title rights, the plurality said:

[101]    By contrast, although native title rights and interests are inalienable, s 51A of the Native Title Act equates the economic value of full exclusive native title to the economic value of unencumbered, freely alienable freehold title and thus, in practical terms, deems the inalienability of full exclusive native title to be irrelevant to the assessment of its economic value. Similarly, just as the inalienability of full exclusive native title is deemed to be irrelevant to the assessment of its economic value, so too must it follow that the inalienability of non-exclusive native title is irrelevant to its economic value; for the latter, as has been explained, falls to be determined by applying the appropriate percentage to the economic value of a freely alienable freehold title.

[102]    The trial judge drew support for that conclusion from the decision of the Privy Council in Amodu Tijani and the decision of this Court in Geita Sebea. Those decisions, however, turned on the specific legislation under which land was acquired in those cases. The Native Title Act is different. Here it is s 51A of that Act, read in light of the extrinsic materials, which makes clear that inalienability of native title is irrelevant to the assessment of its economic value.

592    It must be accepted that s 51A has a role in this debate insofar as the assessment of compensation under the Native Title Act is concerned, as it 'makes clear that inalienability of native title is irrelevant to the assessment of its economic value'.

593    Does it follow that absent a statutory equivalent to s 51A, inalienability of native title rights must be factored into a valuation for the purpose of the Project Act, which is otherwise carried out by analogy with the valuation model endorsed in Griffiths? In my view, it does not. The High Court refers to s 51A 'making clear' the position. That does not suggest that the position is otherwise necessarily different.

594    It must be recognised that the rights being considered are inalienable native title rights. There is no call for a hierarchy that starts with 'alienable' native title rights at its peak. Rather, as a matter of principle there is much to be said for comparing the most ample estate in land (freehold) with the most ample view of native title rights (which are inalienable) for the purpose of the valuation task. That s 51A expresses this, and provides structure to the assessment of the economic value of native title rights, does not mean that the position would otherwise be different. I have not ignored the potential for native title rights to be surrendered, which might suggest native title rights should not always be considered 'inalienable', but I received no substantive submissions on how the potential for a surrender of rights might be taken into account in regard to the assessment of a discount on freehold valuation or native title valuation.

595    Further, to assume that under the Project Act there must be a discount for inalienability when assessing the comparison with freehold title (albeit that the Northern Territory otherwise submitted that the Griffiths methodology is 'appropriate', irrespective of the relevant statutory context), carries a risk of disproportionately low assessments of the value of native title rights, when there is no indication such an approach is required to give effect to the purpose of the Project Act and the requirement of 'just terms'. Although the Northern Territory sought a 25% discount from freehold value for inalienability in this case, the High Court observed that a discount was generally around 50% and referred to an example where the fact that land was wholly inalienable and non-saleable resulted in effectively a 90% discount.

596    There is much to be said for a consistent approach across the Native Title Act and the Project Act in assessing economic loss by reference to freehold value, so I would need to be persuaded that the application of principles and the proper construction of the statutory text of the Project Act required a reduction for inalienability of land. I am not so satisfied. I am not persuaded that the absence of an equivalent to s 51A of the Native Title Act is a distinction that directs a different outcome.

597    Further, even if I am wrong, in this case, it is unclear how the Northern Territory arrived at a figure that further reduced the value of the native title rights and interests to 25% of freehold. It might be that this reflects a 50% discount on an existing 50% valuation of freehold. However, the position is uncertain. Regardless, accepting that the task is broad brush, I note that the Full Court in Griffiths applied a further reduction of 15% (from 80% to 65%) from freehold for a number of reasons, including inalienability. In those circumstances I would have allowed for a further deduction on account of inalienability of 10%.

Whether other discounts for temporal and geographic limitations

Northern Territory's position

598    The Northern Territory contends that the exercise of valuing loss must have regard to the differing effects of the compensable acts. It cites Griffiths HC at [46]:

Section 51(1) thus recognises that the consequences of a compensable act are not and cannot be uniform. The act and the effect of the act must be considered. The sub-section also recognises not only that each compensable act will be fact specific but that the manner in which the native title rights and interests are affected by the act will vary according to what rights and interests are affected and according also to the native title holders' identity and connection to the affected land. As the trial judge held, s 51(1) does not in its terms require that the consequence directly arise from the compensable act. The court's task of assessment under s 51(1) is to be undertaken in the particular context of the Native Title Act, the particular compensable acts and the evidence as a whole.

599    For example, the Northern Territory submitted, for an act that extinguished native title, the Claim Group's loss will be equivalent to the full value of the native title rights and interests, as was the case in Griffiths. It also accepted that where a suppression is practically permanent, it may be appropriate to treat the act in the same way as extinguishing native title. However, it submitted that on the current evidence, the term of the non-extinguishing compensable acts will cease at some point, as the Project has a prescribed mine life and will eventually be closed, with the land subject to rehabilitation obligations. Accordingly, it submitted, there should be a discount in value for those compensable acts, as their effect was to only suspend native title rights.

600    The Northern Territory submitted that compensable acts which have a lesser effect on native title will result in a smaller economic loss and less compensation. The temporary suppression of native title has a different quality to its permanent extinguishment: 'it would be plainly incorrect to equate the loss from the permanent extinguishment of native title with the loss flowing from its suppression for a single day'. It submitted that the extent of the loss falls to be evaluated between those two extremes, depending on the evidence.

601    The Northern Territory relied on the approach of the trial judge in support of this approach. It observed that in Griffiths, the Territory had said that there was no foreseeable prospect of the compensable acts being removed or coming to an end with native title reviving. In those circumstances, and in the context of economic loss, Mansfield J made no deduction for such a contingency. However, his Honour considered that conceptually there may be circumstances where a deduction may be made (at [392], emphasis added):

In a practical sense, where [a compensable act] suppresses native title rights and interests in whole, for the period while those acts are suppressed, they have the same effect as a previous exclusive possession act. For the purposes of compensation, the difference between such acts is the existence of the contingency of the act or its effects being wholly or partially removed or otherwise ceasing to operate so that the native title rights and interests again have full, or partial, effect. In my view it is conceptually appropriate to make a downward adjustment for this contingency. There is no real evidence upon which that contingency can be assessed. That is why I have referred to it as a conceptual contingency. I have endeavoured to give it more than a nominal value or percentage. I do not think that it has any real significance. I would not, therefore, reduce the freehold value in those circumstances at all. In making that conclusion I considered that the removal either wholly or partially of the act or its affects is not likely ever to arise. …

602    In this case, there was a prospect of the acts being limited or coming to an end, and so scope for the downgrade adjustment endorsed at a conceptual level by Mansfield J.

603    The Northern Territory submitted that I should further discount value by reference to geographic and temporal limitations. It acknowledged that under the Spencer test compensation is to be determined in the circumstances that pertain at the date of acquisition, but submitted that it was permissible and within the scope of the Spencer test to undertake a 'predictive assessment' about future possibilities, potentialities and contingencies, noting that the Spencer test postulates hypothetical parties in full possession of knowledge generally available on the date of acquisition.

604    It focused on the grants of MLNs 1121-1126 (to which, it is to be recalled, the non-extinguishment principle applies under s 46 of the Native Title Act) and the pre-1996 non-pastoral use permits.

605    As to MLNs 1121-1125, it referred to evidence from Mr Lyons that in his experience valuing land for other mining operations, only approximately 50% of the land covered by mineral leases is used. Mr Lyons referred to the cattle fence on MLN 1121-1125 and said that it indicated, in his view, that it operated as an access exclusion to about 50% of the leased areas. The Northern Territory accepted that in areas of intensive activity (the areas of the mine and the port within boundary fences) the Claim Group are effectively prevented from exercising their native title rights. Although it was somewhat unclear, the Northern Territory appeared to contend that for each of MLNs 1121-1125, the economic loss award should be reduced by 50% to take into account this geographic limitation.

606    As to the duration of the acts, the Northern Territory relied on the fact that the leases were statutorily granted for 50 years, after which time the native title rights (where suppressed) will revive and can be exercised again. The mineral leases are not of the nature of perpetual leases and will need to be renewed if necessary to undertake rehabilitation activities. Plans exist to rehabilitate the land and there is no evidential reason to conclude that MIM will not comply with its obligations to do so (the evidence relating to the life of the mine is dealt with in more detail when cultural loss is considered). The Northern Territory submitted that the economic loss award should be reduced by a further 20% to take into account this temporal limitation.

607    The end result of these submissions is that for each of MLNs 1121-1125, the Northern Territory submitted that the value of native title rights was to be assessed at 10% of the freehold value.

608    This result of 10% of freehold value for MLNs 1121-1125 was reached in this manner:

(a)    starting point of 100% for freehold value;

(b)    less 50% because non-exclusive and a further 25% because non-alienable, leaving a value of 25% of freehold;

(c)    the 25% of freehold value is then reduced by 50% for geographic limitations, leaving a value of 12.5% (25 x 0.5 = 12.5); and

(d)    the 12.5% is then reduced by 20% for temporal limitations, leaving a value of 10% (12.5 x 0.8 = 10).

609    For MLN 1126, with its significant seaward aspect, the calculation is the same save that the Northern Territory said that the economic loss award should be reduced by a further 75% (as it submits only 25% of the area would be occupied by the port), leaving a value of 5% of freehold value for that area.

610    This result of 5% of freehold value for MLN 1126 was reached in this manner:

(a)    starting point of 100% for freehold value;

(b)    less 50% because non-exclusive and 25% because non-alienable, leaving a value of 25% of freehold;

(c)    the 25% of freehold value is then reduced by 75% for geographic limitations, leaving a value of 6.25% (25 x 0.25 = 6.25); and

(d)    the 6.25% is then reduced by 20% for temporal limitations, resulting in a value of 5% (6.25 x 0.8 = 5).

611    As to the pre-1996 non-pastoral use permits, the Northern Territory relied on the plans for the permit area to support a submission that only approximately 50% of the permit area would be used by MIM. It indicated that a 50% reduction should be applied to reflect the geographical limitation. It also observed that each permit was for a period of one year, so that the cumulative effect was to authorise the use of the land for three years. Having regard to those matters, it submitted there should be a further 50% reduction to the reduced value to reflect the temporal limitations, leaving the value of native title rights for that area at 6.25% of freehold value.

612    The result of 6.25% for the non-pastoral use permits was reached in this manner:

(a)    starting point of 100% for freehold value;

(b)    less 50% because non-exclusive and 25% because non-alienable, leaving a value of 25% of freehold;

(c)    the 25% of freehold value is then reduced by 50% for geographic limitations, leaving a value of 12.5% (25 x 0.5 = 12.5); and

(d)    the 12.5% is then reduced by 50% for temporal limitations, leaving a value of 6.25% (12.5 x 0.5 = 6.25).

Claim Group's position

613    The Claim Group denied there was any reason for further reduction of the value of the native title rights due to geographic or temporal limits.

614    The Claim Group denied there was any room for a 'predictive assessment' of the type suggested by the Northern Territory; denied any role for 'flipping hindsight to foresight' in the context of an assessment of market value (a reference to Hope JA's dictum in Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 558); suggested the Northern Territory was sliding into impermissible fact inquiry about the manner of exercise of native title rights that post-dated the acts; and denied in any event that there was evidence upon which the suggested contingencies could be established.

615    In particular, the Claim Group submitted that as the mineral leases granted rights to MIM over the whole of the relevant areas, it would be wrong to proceed from a speculative assumption that not all of the areas will in fact be used. The potential for MIM to use the whole of the mineral lease area remains, a potential referred to by Mr Copland. The fact that the terms of the mineral leases do not require that all of the area be used does no more than point to the uncertainty, at the time of the valuation date, as to the extent of actual use in the future.

616    The Claim Group submitted that Mr Lyons' evidence that 50% of the areas the subject of the mineral leases would be available for non-mining related uses does not assist and reveals only economic uncertainty. It was proffered in the context of his 'before and after' valuation methodology which was subsequently abandoned by the Northern Territory (and rejected by Mr Copland). Further, they submitted, the evidence should not be accepted. When asked under cross examination to provide the evidential foundation for his opinion as to 50% usage, Mr Lyons said it was 'just a matter of judgement' and 'that is all I can say'. Mr Lyons' reference to the cattle exclusion fence was undermined in cross examination: there was a mining management plan in evidence that suggested the relevant cattle exclusion area (and therefore the associated fence line) had only been present since 2006, and that the location and size of the utilised area had been refined as mining operations changed.

617    As to whether a temporal limitation should be recognised based on the expiry of the term of a compensable act, the Claim Group submitted that the argument artificially suggests an immediate revival of native title rights on the expiration of a term. They denied there would be any 'bright line' date upon which the act or its effects would be removed, referring to the application to the mineral leases by s 46 of the Native Title Act of the non-extinguishment principle which provides that native title rights and interests again have effect 'if the act or its effects' are later wholly or partially removed. According to the Claim Group, when the effects might be wholly or partially removed is unclear as they may be ongoing. In relation to the mineral leases, the Claim Group submitted no temporal reduction should be made because the period of suppression is lengthy enough to exceed the lifespan of a single generation.

618    The Claim Group accepted, however, that there may be a distinction insofar as the shorter terms of the non-pastoral use permits are concerned. The Territory approaches the pre-1996 permits cumulatively, which the Commonwealth flagged as a possibility in the context of the Native Title Act. A pragmatic approach supports treating the permits cumulatively.

Consideration – temporal and geographic limitations

619    The issue of predictive assessment raised by the Northern Territory (and augmented by the Commonwealth) directs attention to the extent to which regard may be had to evidence of later events in the valuation process.

620    In this case and context, as becomes apparent in the freehold valuation section below, the experts opined on the market value of freehold. It is not a case that involved assessment of special value (leaving aside Mr Copland's vested interest premium argument).

621    The principles as to the use of later events as evidence were collected, after a thorough review of the authorities, by Beech J in McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (summary of principles not challenged on appeal in McKay v Commissioner of Main Roads [2013] WASCA 135 at [21] (Murphy JA, Martin CJ and Buss JA agreeing)). Relevantly, Beech J said at [377] (citations omitted):

(1)    Outside of the sphere of valuation, there is no general limit on the use of later events as evidence relevant to and assisting in determining a situation at an earlier point in time: Minister v NSW Aboriginal Land Council [68]. In other contexts relating to compensation and assessment of damages, the courts often express a preference for subsequent facts (occurring between the date of assessment and trial) over prophesies.

(2)    In valuation cases, different considerations apply depending on whether the subsequent event is said to bear upon market value, real value, special value, injurious affection, severance or other notions of value.

(3)    Special considerations apply when the question is one of market value. That is because the basic principle by which value is determined - the notional bargain of the hypothetical purchaser and vendor - directs attention to what was known and knowable at the time of valuation, and not to subsequent material.

(4)    Because of that, in cases involving market value, the general preference of the court for subsequent facts over prophesies that applies in relation to questions of compensation and assessment of damages, has little role to play.

(5)    The dictum of Hope JA that subsequent events may be admissible to prove a foresight was made in the context of a claim for special value, not market value. Moreover, the cases upon which Hope JA relied were not concerned with market value.

(6)    Some subsequent cases have proceeded on the basis that the dictum applies to questions of market value. See, for example, Chino v TIDC; Sorell Council v Downie; Maggiotto v Roads and Traffic Authority (NSW); and Maidment v Roads and Traffic Authority (NSW). However, in none of those cases did application of the dictum result in the admission of any evidence of any real significance to the outcome of the case.

(7)    I am not persuaded that, on a question of market value, post-taking evidence is admissible to 'confirm a foresight'. In other words, I do not consider that Hope JA's dictum applies to a determination of market value. I agree with the observations of Mahoney JA in Housing Commissioner (NSW) v Falconer (576-577); Talbot J in Multari v Roads and Traffic Authority (NSW); and Evans J in Sorell Council v Downie that I have referred to in section 3.3. I also agree with the summary in Hyam A, The Law Affecting Valuation of Land in Australia (4th ed, 2009), 502. In my view, acceptance of a 'confirmation of a foresight' exception on a question of market value is not consistent with the fundamental principles about the process by which market value is determined.

622    The Claim Group relied on this extract in asserting that in the context of the freehold proxy exercise endorsed by Griffiths HC, there was no basis upon which the Court should have regard to evidence of post-act or subsequent events.

623    However, the Northern Territory contended that it does not seek to rely on events that post-date the compensable acts in a manner which offends these principles. Rather, it submitted that the Spencer test postulates hypothetical parties in full possession of knowledge generally available at the date of acquisition, and that future potentialities or contingencies are not irrelevant. Although the Northern Territory referred to Hope JA's much-quoted dictum in Falconer, it did not seek in its submissions about this part of its case to rely on detailed evidence of subsequent events (in contrast to its position in relation to cultural loss, as will become apparent).

624    Rather, the manner in which the Northern Territory sought to rely on geographic and temporal limits in this part of its case was expressed at a general level. It did not seek to emphasise the actual or particular activities that have subsequently occurred on the claim areas over the years since the compensable acts. It referred to potential subsequent use having regard to 'facts' readily identifiable at the time of the grants, such as the area that Mr Lyons' evidence anticipated would likely be used (relevantly by MIM) and the anticipated duration of the acts, taking into account the planned mine life and the term of the various grants.

625    Although on occasion the Northern Territory swayed into evidence of subsequent facts (such as the inability of the Claim Group to enter operational parts of the mine), its submissions as to the manner in which a discount should be applied focused on the objectively available information at the date of the compensable acts, including by reference to Mr Lyons' evidence. Indeed, when it referred in its written and oral submissions to a 'predictive assessment', it seemed (properly) to take some care not to overstate any reliance on evidence of post-act activities on the claim area, instead focusing on predictions based on objectively known information at the valuation date.

626    As a matter of principle, I agree that the Spencer test as adapted and applied in Griffiths HC potentially accommodates reference to such matters. Once freehold value is determined in accordance with orthodox valuation principles, it is necessary on an application such as this for the Court to evaluate the comparative value of the bundle of native title rights and interests.

627    In considering the price at which the hypothetical seller (the Claim Group) and the hypothetical buyer (the Northern Territory) might meet, knowledge of available information about the nature of the rights and interests is attributed to both. Accordingly, as already discussed, the adapted Spencer test provides for information about the non-exclusivity of the native title rights and interests to be taken into account. I consider that objectively-known potential that those rights and interests will be suppressed for only a limited time (rather than extinguished or suppressed indefinitely) and over only parts of the claim area might well be factors that affect the price the buyer would be willing to pay for those interests, and the amount the native title holders may have been prepared to accept for their extinguishment or diminution.

628    Whilst not expressly referred to in Griffiths FC or Griffiths HC, there is support for this view in the reasons of Mansfield J in Griffiths TJ at [392], as extracted at [601] above.

629    However, there are four matters that require some comment.

630    First, whether there should be any discount to take into account such matters must be informed by evidence.

631    Second, any attempt to rely on evidence of subsequent activities or events to retrospectively inform the economic loss valuation task should be avoided. I do not go so far as to say it will never be relevant in a native title compensation case. However, the Northern Territory has not pursued its case on that basis, and the Claim Group contends that 'subsequent events have no place in assessing market value', referencing McKay at [377].

632    Third, an assessment of post-act evidence that is undertaken and purportedly applied in the context of economic loss carries a risk that some allowance for cultural loss might be included. As will be seen, there is a large body of evidence to be considered for the purpose of the cultural loss claim. Its consideration for the cultural loss component is uncontroversial between the parties. There is no general limit on the use of later events as evidence relevant to determining a situation at an earlier point in time (McKay at [377(1)]), and in any event, the cultural loss in this case is to be assessed at the time of judgment.

633    Fourth, the task of evaluating what further discount might be applied to have regard to such matters, and in assessing what might be an overall fair and just result, is by no means straightforward. That does not mean the Court is relieved from the responsibility of making some estimation: The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 (Mason CJ and Dawson J); Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 at [38] (Hayne J); and Griffiths HC at [87].

634    Against that backdrop, I have reached the view that the Northern Territory has failed to establish that there should be any discount in compensation based on geographic limits. The difficulty for the Northern Territory in this case is that I am not satisfied that there is evidence of sufficient weight to justify a reduction in compensation by reason of any predicted limited use of the mineral lease areas for mining purposes.

635    The foundation for Mr Lyons' opinion as to the predicted 50% usage of areas the subject of the mineral leases for mine purposes was not established. In order for this part of the opinion to be admissible, it was necessary that the factual findings or assumptions upon which his opinion was based and the reasons for his opinion were disclosed: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). To the extent he sought to rely on the cattle-fence as supporting his opinion, such reliance was undermined. Even assuming in the Northern Territory's favour that this part of the opinion was admissible, I am unable to give it probative weight, having regard to its general nature and the dilution of its basis under cross examination.

636    Even taking into account objective knowledge of the terms of the mineral leases at the time, the Northern Territory has not satisfied me that it could properly be predicted that any particular portion or percentage of the tenement areas might not be used in a manner that would suppress, limit or be inconsistent with the exercise of native title rights and interests. Even if identified areas were expected to be fenced, access to other parts of those tenements might be affected by mine access and operations. Although there was information available at the time relating to whether there would be an underground mine and the level of development (in particular, the Draft Environmental Impact Statement dated May 1992), it was also foreseeable that the requirements and methods of operations might change from time to time, underlying the uncertainties of the predictive task.

637    Similarly with the coastal MLN 1126, whilst superficially it might appear that MIM's use of much of the seaward aspect of the mineral lease might not give rise to any inconsistency with native title rights, there was no reliable evidence that would inform such a prediction. It is to be recalled that although not determined, the parties accept that the Claim Group have native title rights over the seaward part, which include the right to access, to remain in and to use the area, alternatively, to travel over, to move about and to have access to the area (noting the Northern Territory contends that only the Yanyuwa and Yanyuwa-Marra people had native title in the seaward area of MLN 1126). However, it is unclear whether there is a geographical area within MLN 1126 where it could be predicted that there would be no or limited suppression of such interests and whether that would have any impact upon the economic value of the rights. These are matters of evidence and that practical burden was not met by the Northern Territory in this case. Whilst it can be accepted that the Court is undertaking a difficult evaluative task, it cannot speculate.

638    There may well be examples where an inconsistency with native title rights is confined to a particular area within the geographic area of a claim area. There may well be evidence contemporaneous with the grant of a lease that demonstrates this and demonstrates that such geographic limitations will be consistent over the relevant period. However, the Northern Territory has not satisfied me that such geographic limitations have been established in this case. Accordingly, I would not apply any further discount for any geographic limitation.

639    The position is marginally different in relation to reliance on temporal limitations.

640    I accept that a downward adjustment should be made in the case of the pre-1996 non-pastoral use permits, having regard to their short (12-month) terms. Duration of the interference with rights was tempered. I will treat the three permits cumulatively because to do otherwise is to tinker around the edges of what is already a difficult evaluation. The 12-month terms alone are a reasonable basis upon which I can properly infer that compensation should be modified to reflect that suppression of native title rights and interests would likely end in the relative short term.

641    It will be necessary to take into account that dredge spoil was deposited not only under the pre-1996 permits but under subsequent permits. However, the Claim Group contend, and I accept, that the initial grant authorised the disposal of the dredge spoil and implicitly caused the majority of the impact.

642    Apart from the pre-1996 non-pastoral use permits, I am not satisfied that there should be any adjustment to compensation on the basis of a temporal limitation. I accept that conceptually the 50-year term of the mineral leases supports an inference that the suppression of native title rights will end at some point and that this contrasts with the effect of an act that extinguished, or for all intents and purposes extinguished, native title rights and interests.

643    However, there is no real evidence upon which that contingency can be assessed. How the potential removal or alleviation of the effect of the compensable act some 50 years down the track from the date of valuation might affect the economic value of the native title rights and interests is speculative.

644    I do not dismiss the prospect that the effect on value of such a contingency might be capable of evaluative assessment, but in this case the Northern Territory's submission that there would be some effect on economic value was based on no more than assumption. In contrast, there is evidence that addresses the long-term implications of the suppression and potential revival of native title rights in the context of compensation for cultural loss. That is discussed below.

The Commonwealth's submissions

645    As noted above, the Commonwealth intervening sought to put forward 'new' principles to accommodate assessment of compensation for acts not covered by Griffiths HC, being acts that effected only impairment.

646    It submitted that where compensable acts are non-extinguishing or of finite duration, once the exercise of applying a percentage reduction to the proxy freehold value to take into account non-exclusive title is undertaken, there should be a further percentage reduction so that the compensation for economic loss reflects the extent of inconsistency with the exercise or enjoyment of the native title rights and interests. There must therefore be consideration of the nature of the inconsistency, and an enquiry as to what extent the act affects the ability of the native title holders to enjoy their native title rights.

647    It submitted that this involves a predictive assessment as at the date of the act which considers the extent to which the granted rights will likely be inconsistent with the existence of native title rights and the ability of the native title holders to enjoy or exercise these rights.

648    To some extent this is a similar approach to that of the Northern Territory's predictive assessment, but the Commonwealth submitted that it is permissible for the Court to consider each of:

(a)    the terms of the grant and its constating legislation;

(b)    evidence contemporaneous with the grant that demonstrates the likely manner, nature, duration and geographic extent of the activities to be undertaken pursuant to the grant; and

(c)    the subsequent activities actually undertaken pursuant to the grant and their effect on the ability of native title holders to exercise their native title rights.

649    The third integer goes further than the approach ultimately propounded by the Northern Territory.

650    The Commonwealth referred to a number of lines of authority addressing different interests which it submitted permit a reduction in compensation to take into account subsisting underlying interests, and which permit use of evidence of subsequent events.

651    For example, it contended that an analogy can be drawn with easement cases, where compensation is similarly assessed having regard to co-existing interests. For example, it referred to Sutherland Shire Council v Sydney Water Corporation [2008] NSWLEC 303. The Court directed compensation be paid by Sydney Water Corporation to the Shire for the reduction in value of land burdened by three separate easements, each of which had different impacts. Easement A was for subsurface sewerage works and included rights of access. The Court determined the easement reduced the value of the land by 20%. Easement B conferred more significant rights, including unlimited rights to build permanent towers, and was found to have reduced the value of the land by 80%. Easement C conferred rights confined to the sub-surface and was said to be only a 'blot on title'. Compensation was determined at 10% of land value (interestingly, the expert valuers disagreed as to each of these valuations, except the valuation for Easement A).

652    The Commonwealth contended that the position of the Shire in Sutherland Shire Council can be equated with that of native title holders, with the easements being the equivalent to the grant of non-extinguishing rights. It submitted:

Using this analogy, the assessment required is consideration of the 'natural and reasonable' consequences of the granted rights, including the likely frequency and magnitude of the disturbance and restriction on the underlying interest holder's use of the land. This analogy provides a direct parallel in existing authority as to how to ascertain the diminution in value caused by a non-extinguishing act.

653    As to its third integer involving use of subsequent evidence, it pointed to other fields of valuation where a distinction is drawn between market value and other heads of compensation in considering what evidence can be taken into account. It cited relevantly CMB No 1 Pty Ltd v Cairns City Council [1999] 1 Qd R 1, where it said a 'more liberal approach' was taken to the receipt of subsequent evidence. In that case a distinction was drawn between resumption of land (where an owner is permanently deprived of their interest in the land) and injurious affection, where ownership is retained despite a restriction, and utility and value might be affected, but full ownership might be restored once the restriction is removed. The Commonwealth contended an analogy could be drawn with principles that might apply to injurious affection and impairment, and that (implicitly) a more liberal approach to the evidence that might be received should be applied in relation to impairment of native title.

654    It submitted that the evaluation of a further discount in assessing compensation for economic loss is in any event distinct from the freehold market valuation exercise, and so any restriction on reference to subsequent evidence should not apply.

655    The Northern Territory did not purport to engage with the Commonwealth's submissions on its model, and did not purport to provide an analysis of subsequent activities or effects of the nature anticipated by the Commonwealth's third integer.

656    The Claim Group criticised reliance on a predictive assessment model for the reasons they enunciated in relation to the Northern Territory's case but in addition contended that to the extent the Commonwealth suggested Mr Copland had endorsed Mr Lyons' approach of 'impact percentage' assessment, the submission should be rejected. The Commonwealth referred to part of Mr Lyons' evidence that related to his 'before and after' opinion evidence which was no longer relied upon by the Northern Territory.

657    As is apparent from the Commonwealth's submissions, much remains to be seen as the law works itself out in this area. There may well be cases in the future where the economic value of native title rights might be the subject of expert valuation evidence that relies on and draws comparison with valuations of different interests. Further, compensation claims might include other components of economic loss such as special value, injurious affection, disturbance or severance, again, with appropriate expert evidence that addresses such loss and how valuation principles might be applied or adapted in the context of native title rights.

658    However, those are not matters that arose in this case. I accept the Claim Group's observation that Mr Lyons did not relevantly provide expert evidence that assisted on this issue. Mr Copland attempted to do so only at a general level and I refer to the difficulties with his evidence in this regard below (under the heading 'The vested interest premium').

659    The Claim Group initially pleaded claims for special value, severance and disturbance above market value. As the Northern Territory acknowledged, the test in Spencer is directed to assessing the market value of property, to which in a compensatory scheme may be added further elements to reflect the added value of the property to the owner (citing Turner v Minister of Public Instruction (1956) 95 CLR 245 at 262 (Dixon CJ) and the Lands Acquisition Act, Sch 2, rr 1-2). But the Claim Group led no evidence about such claims and did not pursue them. They claimed only economic loss based on market value (but with certain premiums to which I will turn).

660    I have summarised the Commonwealth's position in deference to the considered and thoughtful approach it took to the issue, and having regard to the evolving nature of the jurisprudence in this area. However, I do not need to determine whether its proposed 'new' principles should be adopted. The Commonwealth did not engage in any factual exercise necessary to give effect to its proposed methodology (although it suggested the sort of evidence that might be relevant to the claim relating to the non-pastoral use permits, being the only acts that may potentially have led to liability under the Native Title Act). The restrained approach of the Commonwealth is understandable, having regard to its position as intervener. But the Court should not engage in that evidentiary exercise absent any assistance. The Northern Territory did not seek to undertake that task, and there is no cause for me to assess compensation under the Native Title Act.

661    However, accepting that the Spencer test is directed to assessing market value of property, to which in a compensation scheme other elements may be added, and acknowledging the adaptability of the Spencer test, I consider the approach to the use of subsequent evidence promoted by the Commonwealth in the context of the bifurcated compensation regime endorsed in Griffiths HC requires some caution.

662    The Commonwealth's suggested third integer involves a level of granularity and focus on the effects of activities pursuant to the relevant grant which tends in my view to risk consideration and weighing of matters that will be and are more properly considered as part of the assessment of cultural loss.

663    The suggested application of it in this case would undoubtedly veer into an assessment of the actual restrictions imposed by the use of the land, including by the mine in its various iterations of scope and design, and the actual manner of the exercise of native title rights after the date of the compensable act. It must be recalled that the plurality in Griffiths HC said (at [81]) 'it is the incidents of native title rights and interests and not the way in which they might be or not be exercised that is determinative of their nature and thus their economic value'. Why and how subsequent evidence of the effects of particular acts and how rights were exercised informs the assessment of economic value or economic loss at the date of freehold valuation was not adequately explained.

664    Compensation to the Claim Group for economic loss is not being assessed in a vacuum. Separately the Court must also assess compensation for cultural loss, and in that context a large body of evidence was presented, including subsequent evidence about the physical and environmental impact of the mine, limitations on access to parts of the claim area, land rehabilitation and the practical effect on the exercise of native title rights. Clearly care must be taken not to take into account such matters in the context of both economic loss and cultural loss in a manner that would lead to double-recovery. I consider the risk is minimised in this case by the Northern Territory's more conservative approach reflected in its further discount model.

Freehold - an actual or 'hypothetical fee simple' estate?

665    The Claim Group submitted that properly understood, Griffiths HC permitted a hypothetical fee simple to be assumed, being relevantly a fee simple that is not subject to the reservation of minerals to the Commonwealth. It was submitted that the references to 'unencumbered freehold' in Griffiths HC permit such interpretation. The phrase 'hypothetical fee simple' was not used by the High Court.

666    The relevance of the distinction is that the Claim Group's expert valuer, Mr Copland, included in his freehold valuation an allowance for an income stream for all compensable acts (except the Road and the pre-1996 non-pastoral use permits), on the assumption that the relevant estate being valued was a hypothetical unencumbered fee simple estate.

667    That is, he took into account the benefit of a reservation of minerals, which he took to be a rental stream and mineral royalties. He adopted prescribed rental rates for mining tenements as a proxy, calculated as a net present value, to be added to the freehold value assessment for the claim area.

668    If it is correct that such income stream is to be taken into account, on Mr Copland's calculations it would add an additional (approximately) $1,776,000 to the freehold value assessment for those compensable acts for which liability has been established (p 8 Copland Report less $1,960.90 for MLN 582). The Claim Group acknowledged that Mr Copland relied on this proxy methodology in circumstances where he had no information to calculate the value of mineral royalties.

669    The Claim Group contended that the plurality in Griffiths HC referred on a number of occasions to 'unencumbered freehold value' when benchmarking native title rights, and had said that s 51A of the Native Title Act equates the value of full exclusive native title to the value of unencumbered freehold. The plurality referred to 'full freehold value' (at [70]). The plurality acknowledged that at common law, freehold ownership, or an estate in fee simple, is 'the most ample estate which can exist in land' (at [67]). The Claim Group submitted this may encompass a hypothetical fee simple.

670    The Claim Group relied on Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 and Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 (Perilya Broken Hill FC) in support of their argument that what falls to be valued is a hypothetical fee simple that disregards the actual estate of the registered proprietor, and so disregards any qualification that might be attached to that estate, including any reservation of minerals to the Crown.

671    Royal Sydney Golf Club concerned the meaning of 'unimproved value' in s 3 of the Land Tax Assessment Act 1910 (Cth), defined to mean 'the capital sum which the fee simple of the land might be expected to realize'. The High Court held that 'the fee simple' for the purpose of s 3 meant an unencumbered fee simple estate without restrictions attaching to the title, so that the land was to be taxed without those restrictions. The provision required the nature of this fee simple to be assumed – hence the phrase 'hypothetical fee simple': at 623-624. Royal Sydney Golf Club did not address mineral reservations: Perilya Broken Hill FC at [81].

672    Next in the chronology is Gollan v Randwick Municipal Council [1961] AC 82. Gollan was a case stated on appeal from the Full Court of the Supreme Court of New South Wales. A question for the Judicial Committee of the Privy Council was whether Royal Sydney Golf Club was correct, and, if so, whether the same construction of 'unimproved value' applied to s 6 of the Valuation of Land Act 1916 (NSW) (as then in force), the terms of which were materially identical.

673    It was determined in Gollan that the hypothetical fee simple disregards conditions amounting to reservations and conditions attaching to the grant and so excludes a reservation (in that case) for the taking of gravel, timber and stone. The hypothetical fee simple is therefore not an actual but an artificial and 'absolute or pure title': Gollan at 101.

674    The Court of Appeal in Perilya Broken Hill FC considered it was bound by Gollan and applied it: at [3] (Macfarlan JA), [77] (Leeming JA, Bathurst CJ agreeing). In issue was the meaning of 'the land value of land' in s 6A(1) of the Valuation of Land Act, defined to mean relevantly 'the capital sum which the fee-simple of the land might be expected to realise'.

675    The Court of Appeal held that the hypothetical fee simple contemplated by s 6A is an absolute or pure title which includes ownership of minerals: at [3], [85]. In doing so, it was acknowledged that there is a difference between a grant in fee simple subject to a reservation of minerals to a Crown grant, such that title to the minerals is never obtained by the grantee, and a grant in fee simple subject to a reservation permitting the taking of gravel or stone by the Crown (as was the case in Gollan). It did not consider this was to the point, having regard to the hypothetical fee simple. It concluded that Gollan establishes that the hypothetical fee simple disregards conditions amounting to reservations in the strict sense (including reservations of minerals), and also conditions attaching to the grant: at [82]. So much is so regardless of whether the fee simple included minerals, a position that is possible in New South Wales: at [84].

676    The question is whether the consideration of a hypothetical fee simple in those cases, in their context of ratings and tax statutes, has a role to play in valuations for native title compensation purposes. There are a number of reasons that tell against its relevance.

677    First, and most significantly, is the recognition that the statutory context of those authorities is particular and creates an artificial conception that is not imported generally into other contexts.

678    The policy behind the requirement to assume an unencumbered fee simple in Royal Sydney Golf Club was explained by the High Court at 623 (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ):

It seems evident that the fee simple mentioned must be taken as free from encumbrances which, if they impaired the value of his estate, nevertheless operated to confer upon some other person or persons an estate or interest in the land. Were it otherwise the taxable value of the land would be diminished but the correlative estate or interest would not come into tax, unless by some chance it were an interest falling under some specific provision imposing liability.

…

The interpretation of the Act which seems best to accord with the policy appearing from its provisions and also to flow from its language is that in assessing the unimproved value an estate in fee simple must be taken as the hypothesis unencumbered and subject to no condition restricting the use or enjoyment of the land.

679    As Leeming JA observed in Perilya Broken Hill FC at [54]-[56], the High Court's reasoning in Royal Sydney Golf Club was closely tied to the provisions of the federal Act as a whole.

680    And as explained by Biscoe J at first instance in Perilya Broken Hill Limited v Valuer-General (No. 6) [2015] NSWLEC 43 at [33] (upheld in Perilya Broken Hill FC):

The phrase 'the fee-simple of land' in s 6A(1) is a hypothetical and artificial concept adopted for rating and taxing purposes: Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 at [44]. It enables the government to bring the first estate of land into tax irrespective of how the estate in the land may in fact be divided between various estate holders and interests.

681    In Gollan, Lord Radcliffe, giving the advice of the Judicial Committee, noted that the unimproved value under the Valuation of Land Act was 'employed primarily for a rating scheme': for example, at 95, 100. Significantly, it was said (at 101-102):

For while burdens on individual titles may naturally enough be treated as irrelevant under a general rating scheme, it would hardly be possible to expect that similar treatment was intended to be given when it came to valuing a person's individual interest for any of these other purposes [being various purposes such as death duties, resumption and mortgage valuations].

…

'Improved value' and 'unimproved value' are special terms to which is allotted a particular statutory meaning. They will be resorted to only where the taxing or other Act in question requires a valuation to be made with reference to these concepts. As has been pointed out, 'unimproved value' is fundamentally a rating concept and, it seems, is resorted to for virtually no other purpose.

…

The scheme of the Act, therefore, does not require that the highly artificial conception of unimproved value should be imported into valuations of estates and interests required for other purposes served by the Act.

682    This conclusion was also referred to by the Privy Council in Broken Hill Pty Co Ltd v The Valuer-General [1970] AC 627 in the context of the non-ratings part of the Valuation of Land Act, where their Lordships found there would be 'grave injustice' and 'unfairness' if the principles applicable to a rating purpose (including the hypothetical unencumbered fee simple) were applied in such different contexts (at 640-642).

683    Once the limited application of the hypothetical fee simple model to particular rating and tax statutory contexts is recognised, there is no rationale, in my view, to adopt it and apply it in the context of s 4B native title compensation, when there is nothing in the purpose or text of s 4B of the Project Act that directs such an approach.

684    There is no suggestion in Royal Sydney Golf Club, Gollan and Perilya Broken Hill FC that the particular valuation principles have any generic operation – in fact the contrary conclusion is apparent from the extracts above. Even acknowledging the proxy nature of the task, there is no reason why the 'highly artificial conception' of a hypothetical fee simple should be imported into a valuation for native title compensation purposes. Compensation is concerned with what is diminished or lost. It is not concerned with diminution or loss of a hypothetical greater interest that was not and could not have been held.

685    This first reason, applying orthodox principles of statutory construction regarding text and purpose, is sufficient to reject the Claim Group's submission that the freehold equivalent of the claim area should be valued on the basis of a hypothetical fee simple, or otherwise providing for the allowance included in Mr Copland's valuation.

686    Second, however, and again having regard by analogy to the Native Title Act compensation provisions, the presence of s 51A in the Native Title Act does not direct a different outcome. The Claim Group emphasised that the High Court in Griffiths HC equated full exclusive native title with 'unencumbered freehold'. So much is clear. However, there is no indication in Griffiths HC that the reference to 'unencumbered freehold' was intended to mean a hypothetical fee simple.

687    It is true that the plurality referred to Royal Sydney Golf Club when describing, in orthodox terms, the nature of an actual fee simple estate; the one reference is at [67, fn 101]. However, the Claim Group's submission that the High Court had regard to Royal Sydney Golf Club does not assist it. To my mind the submission merely emphasises that if the High Court had in mind that the freehold referred to in s 51A had some equivalency with the hypothetical fee simple at the centre of the discussion in Royal Sydney Golf Club, it would have said so. The High Court did not at any point refer to a hypothetical fee simple or use other words that might have directed attention to a hypothetical, pure or artificial assessment of freehold.

688    The focus on the hypothetical was the distinguishing feature of Royal Sydney Golf Club, which was the subject of subsequent Privy Council attention in Gollan. The significance of the hypothetical fee simple in those cases dissuades me from assuming that the High Court may have had such a hypothetical interest in mind in Griffiths HC but simply omitted to explicitly say so.

689    Further, and for completeness, the text of s 51A, with its reference to 'a freehold estate in the land', does not use the language of 'fee simple' included in, for example, s 6A(1) of the Valuation of Land Act the subject of Perilya Broken Hill FC. Nor are there other textual matters in the drafting of s 51 or s 51A that would seem to assist the Claim Group on this particular issue.

690    Finally, the unorthodoxy of the introduction of such an approach should not be ignored. As observed earlier in these reasons, all title in minerals in the Northern Territory was vested in the Crown in right of the Commonwealth and subsequently the Northern Territory. Further, by s 21 of the Crown Lands Act 1992 (NT) an estate in fee simple, however acquired, is subject to a reservation to the Crown of all minerals. In short, having regard to the legislative framework, the Northern Territory submitted that there is no fee simple estate in the Northern Territory that does, or can, include a title to minerals. The Claim Group did not submit otherwise.

691    This highlights the artificiality of introducing a hypothetical fee simple in a context where comparative freehold valuations are routinely and consistently carried out without regard to minerals that are not owned by the grantee of the relevant freehold estate. So much is reinforced by Mr Copland's acceptance under cross examination that he had never valued an interest in the Northern Territory on such a basis before, despite his extensive valuation experience. He also observed in his report that there are no sales of which he is aware that do not exclude mineral rights and reserves and that might otherwise indicate such value.

692    Nor is the exclusion of mineral rights in this particular valuation or compensation context a surprising development. Section 174B(2) of the Mining Act provided that in determining the amount of compensation payable to any owner and occupier of private land comprised in a mining tenement, no account was to be taken of minerals known or supposed to be on or under the land.

693    Having rejected reliance on a hypothetical fee simple, focus returns to a freehold estate as the most ample estate in land.

Freehold value determination

Terminology

694    Each of the Claim Group and the Northern Territory relied on expert valuation evidence to assess value of the freehold of the claim area. The experts tended to refer to each of the separate mineral leases, non-pastoral use permit area, the Pipeline Licence area and the Road as parcels or tenements. Consistent with their approach, I will use 'tenements' in this section of the reasons to distinguish each of those compensable act areas from PPL 1051 as a whole. The experts also referred to the PPL 1051 area as McArthur River Station. To accurately reflect their evidence, I will also generally refer to PPL 1051 in this part as McArthur River Station.

The experts

695    The Claim Group relied on evidence given by Mr Copland. The Northern Territory relied on evidence given by Mr Lyons. Both provided written reports and were examined and cross examined in conclave.

696    Mr Copland is an experienced valuer, having worked in the Valuer General's Office and in private valuation firms for many years. He is a licensed valuer in Western Australia and Queensland (I was told no licence is required in the Northern Territory). He has been involved in compulsory acquisitions, court proceedings (including the Griffiths litigation) and is a registered panel valuer with a number of banks and credit institutions. He has spent 30 years working across the Northern Territory and knows many of the individual properties referred to in his evidence, having 'farmed them, driven them, stayed there'. He has inspected most of the 220 or so pastoral leases in the Northern Territory and most small parcels around Katherine or the Douglas-Daly area. He has undertaken remote area valuations in the Northern Territory and areas such as the Eyre Peninsula, the Kimberley, Western and Northern Queensland for over 32 years. He has traversed through the McArthur River Station area, and inspected many of the local stations, over that time. He conducted an aerial inspection of McArthur River Station in June 2023 as well as the Jandanku Aboriginal Land Trust land (formerly Bauhinia Downs) and the Leila Creek land, both of which are referred to in his report. He also conducted on-ground inspections of Bauhinia Downs and Leila Creek. He explained in oral evidence that his many visits to the properties over the years and his opportunities to talk to people, including the owners at the time, gave him accumulated local knowledge. It also provided him with an opportunity to better inspect improvements or evidence of improvements that may have once stood on the land.

697    Mr Lyons similarly is an experienced valuer. He has been a practising valuer in Queensland and the Northern Territory for over 40 years. He has extensive experience valuing rural and pastoral properties in both jurisdictions, though mainly in the southern parts of the Territory. His evidence was that he had inspected sites in the Northern Territory for valuation purposes on some five to six occasions. He has also valued cattle grazing pastoral properties in the Gulf Country to the east of the Northern Territory border, but 'not that far away' from the claim area. He considered there to be similarities between the Gulf Country in Queensland and the claim area.

698    Mr Lyons accepted that Mr Copland had the advantage of working in the Northern Territory and the opportunity to inspect some of the relevant properties over periods of time. In preparing his report Mr Lyons was required to use other techniques, such as land-mapping and satellite imagery which permitted him to look at past point-in-time imagery. He accepted these tools were inferior to an on-site inspection (which would be 'the optimum') in terms of assisting with a valuation.

699    Both experts originally undertook their valuations on a desktop basis but subsequently viewed some of the properties from the air or on ground and as a result made certain adjustments or confirmed their initial views.

700    The experts proceeded on the basis that the valuation date was 30 June 1993 (as instructed) and on the same body of sales evidence. Although the compensable act date for each of the non-pastoral use permits (relevantly 9 April 1994), Pipeline Licence (10 May 1994) and Road sections (April to December 1994) post-dated 30 June 1993, the experts agreed that there would be no material difference in value between 30 June 1993 and those respective dates.

701    The experts both undertook the valuations on an unimproved land value basis. The area size in hectares of each tenement was agreed.

702    Both Mr Copland and Mr Lyons acknowledged that there were very few useful comparator sales of properties, whether of PPLs or freehold tenure, and few sales on dates proximate to June 1993. As will be seen, the experts disagreed as to the use that could be made of the sales information and the ultimate rates per hectare to be applied to the respective tenements.

Outcome

703    Before embarking on an analysis of their approaches and conclusions, for context I note the contrast in the respective conclusions of the valuers as to the freehold value of the mineral leases, pre-1996 non-pastoral use permits, Pipeline Licence area and Road. This table uses areas adopted by both Mr Copland and Mr Lyons in their reports, save that the Road area has been adjusted to 244 ha (rounded) and the Pipeline Licence area has been adjusted to 110 ha (in accordance with clarification from the Northern Territory):

704    The Note in relation to MLN 1126 reflects that Mr Lyons adopted an area of only 200 ha for MLN 1126, being the area estimated to be above the high-water mark, and on that basis he adopted a value of only $5,250 for this tenement. In closing, the Northern Territory accepted that following the consolidation of the applications, the seaward area of MLN 1126 is to be taken into account, so that the correct area is 900 ha and Mr Lyons' freehold value should be re-calculated. It was accepted that this would be a mathematical exercise, so (absent any other guidance) I have applied Mr Lyons' rate of $26.25/ha for the 900 ha, deriving the figure of $23,625. The submissions at times gave areas in km²: the equivalent to 13,053.2 ha is 130.53 km².

Summary of respective approaches of the experts

Mr Copland's approach

705    Mr Copland's valuation had (relevantly) three components. He valued the market value of the freehold title of each tenement through a comparable sales method. He added the net present value of an income stream over the lifespan of the tenements (because under the hypothetical fee simple model, he disregarded the reservation of minerals to the Crown). Mr Copland also added a 'vested interest premium', said to reflect the added benefit which a landowner (MIM as pastoral lessee) would obtain from acquiring an interest in land it already owns (by PPL 1051). I have already rejected the hypothetical fee simple model. I address the 'vested interest premium' separately below. This section deals with the comparable sales valuation.

706    Although concerned with a valuation date of June 1993, Mr Copland referenced records of sales of freehold and PPL properties obtained from the Registrar General across a valuation period of 1986 to 2022. He acknowledged that freehold valuation was the more appropriate basis for assessing compensation, observing that a PPL interest is only one component of the bundle of rights in land.

707    However, Mr Copland said there were few freehold sales in the Northern Territory of property with similar physical attributes to McArthur River Station: the sales were typically of smaller, better located property but they better represented certain physical components of the tenements. There was also an absence of PPL sales for areas the size of the tenements. He therefore considered and compared PPL sales and the few larger identified freehold sales to ascertain the relativity between PPL and freehold values as at 1993.

708    Mr Copland undertook a similar task using information available at 2022 to obtain a benchmark relativity between PPL and freehold values at that time.

709    Having regard to this information and knowledge, Mr Copland determined a rate per hectare, and a value of McArthur River Station as a whole, on both a PPL and freehold tenure basis as at 1993.

710    Mr Copland then determined the unimproved land value of each tenement on both a PPL and freehold tenure basis as at 1993.

711    He observed that each tenement had different characteristics. Using his knowledge acquired over many years, he made allowances for the variation in physical attributes of the properties in order to determine the appropriate unimproved land value for each tenement.

712    Mr Copland concluded:

I consider that in the absence of PPL sales data of a similar relative size to the much smaller individual tenements of the subject, a far higher value rate is applicable to the land contained within each individual tenement (assuming a PPL tenure). In this instance, the land value rates are more appropriately compared to the freehold sales, as this data is far more comparable in physical attribute to the subject tenements, in particular relative size comparisons which influences the rate per hectare of the individual property. In this regard I consider the smaller freehold sales provide a more comparable guide to value of the subject tenements, albeit a superior tenure than a PPL interest. As such, I consider the freehold sales set an upper limit of value comparison to the subject tenements, with the far larger PPL sales evidence considered to set the lower limit of value for the subject tenements.

713    Mr Copland further explained in the joint session that the comparative process he undertook included consideration of a myriad of matters and how they integrate on the particular property. The comparative exercise involved synthesizing not only physical size but 'the shape, the access, the location, its proximity to water' and a number of such variables, drawing upon his accumulated local knowledge. Distance from major centres might be relevant. Land systems and rainfall might be relevant. The bundle of rights attached to the type of tenure (such as pastoral lease, as against perpetual pastoral lease) is relevant. He observed that there is 'no measurement' of such things.

714    Having described his methodology, I turn now to Mr Copland's property-by-property assessment and results.

715    The first group of sales were collected as '1993 Sales Analysis – PPL 1051'. Mr Copland listed seven sales of PPL tenure. For each sale he determined a rate per hectare, and stated whether he considered a higher or lower rate would apply to McArthur River Station.

716    He assessed the value of McArthur River Station (722,500 ha) assuming a direct comparison on a PPL tenure to be a range of $3.50/ha (totalling $2,528,750) to $5.00/ha (totalling $3,612,500), adopting a mid-range figure of $3 million ($4.15/ha).

717    This assessment does not result in a flat rate per hectare for the separate tenements, as it does not have regard to their physical differences and variables.

718    Taking the direct comparison and various physical variable matters into account, Mr Copland assessed a rate per hectare on a PPL tenure basis for each of the tenements. Those rates were:

719    The second group of sales were collected as '1993 Sales Analysis – Freehold'. Mr Copland assessed the sales data for five freehold properties. Similarly, he assessed whether by comparison a higher or lower rate per hectare would apply to McArthur River Station, generally concluding that lower rates would apply (with one exception) but that 'given the size relativity', higher rates are applicable to the tenements.

720    Mr Copland assessed the value of McArthur River Station on direct comparison assuming a freehold tenure to be a range of $15.00/ha (totalling $10,837,500) to $20.00/ha (totalling $14,450,000) and adopted $12 million as a midrange ($16.61/ha).

721    I interpolate to note that Mr Copland originally landed on a higher freehold value for McArthur River Station, and so the adoption of $12 million in the final iteration of his report was, as senior counsel for the Claim Group said, a 'significant revision down'. Mr Copland explained that the change resulted from analysing extra sales (Taylors Park) and having further regard to the ratio and relativities with PPL valuations, as those valuations were easier to identify on a direct comparison basis.

722    Mr Copland then apportioned unimproved land value rates per hectare to each tenement on a freehold basis in accordance with the sales data and 'the methodology and relativity reasoning' he had detailed. He had concluded based on his analysis of sales that PPL unimproved land value is equivalent to 'broadly 20%' of the freehold unimproved land value. Accordingly, applying that ratio and in the context of his knowledge of the attributes of the properties, Mr Copland assessed the freehold rate for each tenement as: